Registration Procedures and Expenses. The Company shall: ------------------------------------ (a) prepare and file with the SEC, within 90 days after the Closing Date, a registration statement on Form S-3 (the "Registration Statement"), to enable the resale of the Shares by the Investors from time to time on a national securities exchange or in privately-negotiated transactions; (b) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 days after the Closing Date; (c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement; (d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary Prospectuses; (e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, however, that the Company shall not be required to 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; (f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and (g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued. (h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.
Appears in 2 contracts
Samples: Purchase Agreement (Hanover Compressor Co /), Purchase Agreement (Hanover Compressor Co /)
Registration Procedures and Expenses. The Parent Company shall cause the Subsidiary Company to, and the Subsidiary Company shall: ------------------------------------:
(a) prepare and use its best efforts to file with the SECSEC not later than September 15, within 90 days after 1997 a shelf registration statement under the Closing DateSecurities Act on Form S-3, if the Subsidiary Company is eligible to file a registration statement under such form (and if the Subsidiary Company is not eligible to file a registration statement under Form S-3, to file with the SEC a registration statement under the Securities Act on Form S-3 (the "Registration Statement"S-1 or any other form which is appropriate), to enable register the resale of the Conversion Shares and Warrant Shares, and to use its best efforts to cause such registration statement to be declared effective by the Investors from time SEC by not later than December 15, 1997. Such registration statement will also cover shares issuable upon conversion of Series A Preferred Stock of CXI sold by CXI pursuant to time on a national securities exchange or in privately-negotiated transactionscertain Stock Purchase Agreement dated as of August 15, 1997;
(b) use its reasonable best efforts, subject to receipt of necessary information from the InvestorsPurchaser, to cause the such Registration Statement to become effective as soon promptly after filing as practicable, but in no event later than 150 days after the Closing Date;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the such Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the such Registration Statement current and effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, the earlier until termination of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time obligation as all Shares purchased by such Investor provided in this Offering have been sold pursuant to a registration statementSection 8.9 below;
(d) furnish to the Investor Purchaser with respect to the Shares CXI Common Stock registered under on the Registration Statement (and to each underwriter, if any, of such CXI Common Stock) such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares CXI Common Stock by the Investor, Purchaser; provided, however, that the obligation of the Subsidiary Company to deliver copies of Prospectuses or Preliminary Prospectuses prospectuses to the Investor Purchaser shall be subject to the receipt by the Subsidiary Company of reasonable assurances from the Investor Purchaser that the Investor Purchaser 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 such Prospectuses or Preliminary Prospectusesprospectuses;
(e) file such documents as may be required of the Subsidiary Company for normal blue sky securities law clearance for the resale of the Common Stock in which states specified in writing of the United States as may be reasonably requested by the Investor, Purchaser; provided, however, that the Subsidiary Company shall not be required in connection with 21 22 this paragraph (e) to qualify to do business as a foreign corporation or execute a general consent to service of process in any jurisdiction in which it is not now so qualified or has not so consentedjurisdiction;
(f) bear all expenses in connection with the procedures in paragraphs (a) through (e) of this Section 8.2 and the registration of the CXI Common Stock on such Registration Statement and the satisfaction of the blue sky laws of such states, including the reasonable fees and expenses of legal counsel to the Purchaser in connection with the procedures in paragraph (a) through (e) of this Section 7.1 8.2, other than underwriting discounts and the registration of the Shares pursuant selling commissions or expenses required by law to the Registration Statementbe borne by Purchaser; and
(g) advise in the Investors promptly after it shall receive notice or obtain knowledge event of the issuance failure of Company to procure registration, in accordance with Section 8.2(a) of this Agreement, of the Conversion Shares and the Warrant Shares prior to any stop order of the dates set forth below in this Section 8.2(g), the Parent Company will pay Purchaser by wire transfer, as liquidated damages for such failure and not as a penalty, for each month or part thereof for which such failure continues or in the event of a Suspension (as defined in Section 8.7) after such date, an amount equal to the following percentages of the Liquidation Preference of all COES Preferred Shares acquired by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold Purchaser pursuant to Rule 144(k) this Agreement which are still owned by such Purchaser and have not been converted: Required Effective Date Percentage ----------------------- ---------- On or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports before November 19, 1997 1% Between November 20 and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon requestDecember 19, as long as the Investor owns any Shares1997 2% After December 20, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.1997 3%
Appears in 2 contracts
Samples: Securities Purchase Agreement (Commodore Environmental Services Inc /De/), Securities Purchase Agreement (Commodore Environmental Services Inc /De/)
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) as soon as practicable, but in no event later than fifteen days following (i) the First Closing Date, in the case of the Purchased Shares and the Warrant Shares, and (ii) the Second Closing Date, in the case of the Option Shares (the “Filing Deadline”), prepare and file with the SEC, within 90 days after the Closing Date, Commission a registration statement Registration Statement on Form S-3 (or, if permissible under the "Registration Statement")Rules and Regulations, a post-effective amendment to enable a then effective registration statement on such form) relating to the resale of (x) the Purchased Shares, the Warrant Shares and the Option Shares and (y) any shares of Common Stock issued or issuable directly or indirectly with respect to the securities referred to in clause (x) by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization (together, for purposes of this Section 7, the “Registrable Securities”) by the Investors Purchaser from time to time on a The Nasdaq Capital Market, or the facilities of any other national securities exchange on which the Common Stock is then traded or in privately-privately negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the InvestorsPurchasers whose securities are included therein, to cause the Commission to declare the Registration Statement to become (or post-effective amendment, as soon as practicable, but in no event later than 150 applicable) effective within 30 days after the applicable Closing DateDate or, if the Commission reviews the Registration Statement, within 120 days after the applicable Closing Date (the “Effective Deadline”);
(c) use its reasonable best efforts to promptly prepare and file with the SEC 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 current and effective for a period not exceeding, with respect to until (the Investor's Shares purchased hereunder, “Effectiveness Period”) the earlier earliest of (i) two years after the second anniversary effective date of the Closing DateRegistration Statement, or (ii) such time as the date on which the Investor may sell all Shares then held Registrable Securities become eligible for resale by the Investor without restriction by the volume limitations of non-affiliates pursuant to Rule 144(e144(k) of under the Securities ActAct or any other rule of similar effect, or (iii) such time as all Shares purchased by such Investor in this Offering of the Registrable Securities have been sold pursuant to a registration statementthe Registration Statement;
(d) so long as the Registration Statement is effective covering the resale of the Registrable Securities owned by the Purchaser, furnish to the Investor Purchaser with respect to the Purchased Shares, the Warrant Shares and the Option Shares registered under the Registration Statement (and to each underwriter, if any, of such Purchased Shares, the Warrant Shares and Option Shares) such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act prospectuses and such other documents as the Investor Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares Registrable Securities by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary ProspectusesPurchaser;
(e) file documents required of the Company for normal blue sky Blue Sky clearance in states specified in writing by the Investor, Purchaser; provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph paragraphs (a) through (e) of this Section 7.1 and the registration of the Shares Registrable Securities pursuant to the Registration Statement, other than fees and expenses, if any, of counsel or other advisers to the Purchaser or the Other Purchasers (in each case except as otherwise provided herein) or underwriting discounts, brokerage fees and commissions incurred by the Purchaser or the Other Purchasers, if any, in connection with the offering pursuant to the Registration Statement;
(g) file a Form D with respect to offer and sale of the Purchased Shares and the Warrant Shares to the Purchaser as required under Regulation D under the Securities Act and to provide a copy thereof to the Purchaser promptly after filing; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With file, not later than the next business day after the First Closing Date, a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Current Report on Form 108-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail with the Investor of any rule or regulation Commission disclosing all material terms of the SEC that permits transactions contemplated hereby in accordance with the selling of any such Shares without registrationapplicable Rules and Regulations. The Company understands that the Investor Purchaser disclaims being an underwriter, but the Investor Purchaser being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated . A questionnaire related to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with to be completed by the SEC.Purchaser is attached hereto as part of Appendix I.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Babyuniverse, Inc.), Stock Purchase Agreement (Babyuniverse, Inc.)
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) Promptly following the Closing, prepare and file with the SEC, within 90 days after the Closing Date, SEC a registration statement on Form S-3 (the "Registration Statement")) on Form S-3 (or, if the Company is not then eligible to enable use such form, on any other form of registration statement promulgated by the SEC which would cover the resale of the Shares) covering the resale of the Shares by the Investors Investor from time to time on a national securities exchange or time; provided however, that the Company will furnish to the Investor and its counsel copies of all documents proposed to be filed, which documents will be subject to the review of such counsel, and the Company will give reasonable consideration in privately-negotiated transactions;good faith to any comments of Investor and such counsel regarding such registration statement.
(b) use Use its reasonable best efforts, subject to receipt of necessary information from the Investors, efforts to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 90 days after the Closing Date;. If the Registration Statement is not declared effective by 135 days after the Closing Date for reasons other than undue delays occasioned by the Securities and Exchange Commission and of which the Company will give Investor notice and which Investor agrees are undue delays, which agreement will not be unreasonably withheld, the Purchaser shall be entitled to receive a penalty payment accruing at the rate of fifty thousand dollars ($50,000) per month on the amount of the Aggregate Purchase Price from the 136th day after the Closing Date until the Registration Statement becomes effective, the accrued and unpaid amount of such payment to be paid on the last day of each month up to and including the month in which the Registration Statement becomes effective.
(c) use Use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to the each Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of under Rule 144(e) 144 of the Securities Act, or such time as no Shares are held by the Investor. Notwithstanding the foregoing, following the effectiveness of the Registration Statement, the Company may, at any time, suspend the effectiveness of such Registration Statement for up to 60 days, as appropriate (a "Suspension Period") by giving notice to the Investor, if the Company shall have determined that the Company may be required to disclose any material corporate development disclosure of which may have a material adverse effect on the Company. No more than two Suspension Periods may occur in any twelve month period unless, in the good faith judgment of the Company's Board of Directors, upon advice of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 9.1(c) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in potential liability to the Company. The period of any such suspension of the Registration Statement shall be added to the period of time the Company has agreed in this subsection (c) to keep the Registration Statement effective. The Company shall use its reasonable best efforts to limit the duration and number of any Suspension Periods. The Investor agrees that, upon receipt of any notice from the Company of a Suspension Period, the Investor shall discontinue disposition of the Shares under such Registration Statement and applicable prospectus until the Investor (i) is advised in writing by the Company that the use of the applicable prospectus may be resumed, (ii) has received copies of a supplemental or amended prospectus, if applicable, and (iii) has received copies of any additional or supplemental filings which are incorporated or deemed to be incorporated by reference in such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statementprospectus.;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses prospectuses and Preliminary Prospectuses preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 9.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors Investor, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company it will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Exchange Act; and (iii) during the period referred to in clause (i) of this paragraph furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.
Appears in 2 contracts
Samples: Purchase Agreement (Cerus Corp), Purchase Agreement (Cerus Corp)
Registration Procedures and Expenses. The Company hereby agrees that, to the extent not prohibited by any applicable law or applicable interpretation of the staff of the Securities and Exchange Commission (the “SEC”) it shall: ------------------------------------:
(a) prepare and file with the SEC, within 90 as soon as reasonably practicable after the Contribution, but in no event more than ten (10) days after the Closing DateContribution, a shelf registration statement on Form S-3 covering the Registrable Shares, except to the extent the Company has an existing shelf registration statement covering the Common Stock which may be used for the purposes contemplated herein (such new or existing registration statement and any successor registration statement filed under the Securities Act of 1933, as amended (the "“Securities Act”), hereinafter referred to as the “Registration Statement"”), to enable the resale of Manager to sell the Registrable Shares by the Investors from time to time in the manner contemplated by the plan of distribution set forth in the Registration Statement, as amended by any prospectus supplement or post-effective amendment thereto, and use its commercially reasonable efforts to cause such Registration Statement, if not effective on a national securities exchange the date of the Contribution, to become effective as promptly as reasonably possible after filing and to remain continuously effective until the earliest of (i) the date on which all Registrable Shares are sold, (ii) the date on which all Registrable Shares may be sold by the Trust to the public in accordance with Rule 144 under the Securities Act or any successor rule thereto (as such rule may be amended from time to time, “Rule 144” and when no conditions of Rule 144 or such successor rule are then applicable to the Trust (other than the holding period requirement in privately-negotiated transactionsparagraph (d) of Rule 144, so long as such holding period requirement is satisfied at such time of determination), and (iii) the date which is ninety (90) days after the date on which the number of Registrable Shares held by the Trust is less than one percent (1%) of the shares of Common Stock then outstanding (the period from the date of effectiveness until such earliest date, the “Registration Period”); provided, however, that it shall not be required to file the Registration Statement or cause such Registration Statement to be declared effective during the pendency of any suspension period pursuant to Sections 1.2(b) or (c) below;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 days after the Closing Date;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the Prospectus used prospectus related thereto filed with the SEC pursuant to Rule 424(b) under the Securities Act, or if no such filing is required, as included in connection therewith the Registration Statement (the “Prospectus”), as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to at all times until the Investor's Shares purchased hereunder, the earlier of (i) the second anniversary end of the Closing DateRegistration Period; provided, (iihowever, that it shall not be required to file any such amendment or supplement during the pendency of any suspension period pursuant to Sections 1.2(b) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iiic) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statementbelow;
(dc) furnish to the Investor Manager with respect to the Shares registered under the Registration Statement such reasonable number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses Prospectus in conformity with the requirements of the Securities Act Act, and such other documents as the Investor Manager may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary ProspectusesTrust;
(ed) use its commercially reasonable efforts to file documents required of the Company for normal blue sky clearance in such states specified as the Manager shall reasonably designate in writing by the Investor, writing; provided, however, that the Company shall not be required to qualify to do business or business, consent to service of process or subject itself to taxation in any jurisdiction in which it is not now so qualified or has not so consentedconsented or become subjected;
(e) use its reasonable commercial efforts to cause the Registrable Shares to be listed on the New York Stock Exchange as soon as reasonably practicable after the date of the Contribution; and
(f) bear all expenses in connection with the procedures in paragraph actions contemplated by paragraphs (a) through (e) of this Section 7.1 1.1 and the registration of the Registrable Shares pursuant to the Registration Statement; and
(g) advise , including reasonable fees and expenses of legal counsel to the Investors promptly after it shall receive notice or obtain knowledge Manager incurred in connection with the registration and sale of the issuance Registrable Shares, such fees and expenses of any stop order legal counsel not to exceed twenty five thousand dollars ($25,000) in the aggregate without the Company’s consent (which consent will not be unreasonably withheld or delayed), but excluding underwriting discounts, brokerage fees, commissions and transfer taxes incurred by the SEC delaying Manager or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment Trust, if such stop order should any. It shall be issued.
(h) With a view to making available condition precedent to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required obligations of the Company under to take any action pursuant to this Section 1.1 that the Exchange Act; and (iii) furnish Manager shall provide such reasonable assistance to the Investor upon requestCompany and furnish, or cause to be furnished, to the Company in writing such information regarding the Manager, the Registrable Shares to be sold, and the intended method or methods of disposition of the Registrable Shares, as long as shall be required to effect the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements registration of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, Registrable Shares and (C) such other information as may be reasonably requested in order required from time to avail time under the Investor of any rule or regulation of Securities Act and the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECrules and regulations thereunder.
Appears in 2 contracts
Samples: Registration Rights Agreement (Boeing Co), Registration Rights Agreement (Boeing Co)
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) provided that the Company has not obtained Shareholder Approval by the Second Closing Deadline (and such condition has not been waived under the Purchase Agreement by both parties thereto), and subject to receipt of necessary information from the Selling Stockholder or other holder or holders, as the case may be, from time to time, of the Registrable Securities (as defined below) (the “Holder” or “Holders”), prepare and file with the Securities and Exchange Commission (“SEC”), within 90 days fifteen (15) Business Days after the Second Closing Deadline (the “Required Filing Date”), a registration statement Registration Statement on Form S-3 (except if the "Company is not then eligible to register on Form S-3, in which case such registration shall be on another appropriate form in accordance herewith) (the “Registration Statement"), ”) to enable the resale of the Shares by the Investors Holder from time to time on a national securities exchange of the Subsequent Stockholder Shares (as well as shares of Common Stock issued or in privately-negotiated transactionsissuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the Subsequent Stockholder Shares (together, the “Registrable Securities”);
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investorseach Holder, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 ninety (90) days after the Closing Required Filing Date (the “Required Effective Date”). If the Registration Statement (x) has not been filed by the Required Filing Date, (y) has not been declared effective by the SEC on or before the Required Effective Date, or (z) is filed and declared effective but shall thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded within ten (10) business days (the “Required Cure Date”) by a post-effective amendment to such Registration Statement that cures such failure and that is itself immediately declared effective, the Company shall, on the Business Day immediately following the Required Filing Date, the Required Effective Date or the Required Cure Date, as the case may be, and each 30th day thereafter, make a payment to each Holder as partial compensation for such delay (the “Late Registration Payments”) equal to one percent (1%) of the aggregate price of the Registrable Securities, calculated based on a per share price of $5.05, not previously sold by the Holder or otherwise registered by the Company pursuant to Section 5 until the Registration Statement is filed or declared effective by the SEC, as the case may be; provided, however, that in no event shall the payments made pursuant to this paragraph (b), if any, exceed in the aggregate twelve percent (12%) of such aggregate price. Late Registration Payments will be prorated on a daily basis during each 30 day period and will be paid to the Holders by wire transfer or check within five Business Days after the earlier of (i) the end of each thirty day period following the Required Effective Date, Required Filing Date or Required Cure Date, as applicable or (ii) the effective date of the Registration Statement;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, ending on the earlier of (i1) the second anniversary of the Closing Date, (ii) date the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, Registration Statement is declared effective or (iii2) such time as all Shares purchased Registrable Securities owned by such Investor in this Offering Holder have been sold pursuant to a registration statementstatement or Rule 144 (“Rule 144”) under the Securities Act (the “Effectiveness Period”), and to notify each Holder promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective by the SEC;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement any Holder such number of copies of the Registration Statement, Prospectuses Statement and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents Prospectus (including supplemental prospectuses) as the Investor Holder may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares Registrable Securities by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary ProspectusesHolder;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, Holder; provided, however, that the Company shall not be required to 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;
(f) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph (a) through (e) of this Section 7.1 1 and the registration of the Shares Registrable Securities pursuant to the Registration Statement; and;
(g) advise the Investors Holders, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company it will promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.; and
(h) With with a view to making available to the Investor Holders the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor Holders to sell Shares Registrable Securities to the public without registration, the Company covenants and agrees to use its commercially reasonable efforts to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares Holder’s Registrable Securities may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares Holders’ Registrable Securities shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shareseach Holder, (A) a written statement by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the Company's ’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor Holder of any rule or regulation of the SEC that permits the selling of any such Shares Registrable Securities without registration. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 1 that a Holder shall furnish to the Company a completed Questionnaire in the form attached hereto as Exhibit A. The Company understands that the Investor Holder disclaims being an underwriter, but acknowledges that a determination by the Investor being SEC that the Holder is deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.
Appears in 2 contracts
Samples: Registration Rights Agreement (Ediets Com Inc), Registration Rights Agreement (Ediets Com Inc)
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) a. subject to receipt of reasonably necessary information from each Holder, prepare and file with the Securities and Exchange Commission (the “SEC”), as soon as practicable, but in any event within 90 days five days, after the Closing filing of the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2010 (the “Filing Date”), a registration statement (the “Registration Statement”) on Form S-3 (except if the "Registration Statement")Company is not then eligible to register on Form S-3, in which case such registration shall be on another appropriate form in accordance herewith) to enable the resale of the Shares by the Investors Holders from time to time of (w) the Investor Shares, (x) the Warrant Shares issued or issuable, the (y) Other Shares and (z) the shares of Common Stock issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the Investor Shares, the Warrant Shares or the Other Shares (collectively, the “Registrable Securities”); and, if possible at the time of such registration, cause such Registrable Securities to be registered for listing on a national securities exchange or in privately-negotiated transactionsthe Nasdaq Capital Market;
(b) b. use its reasonable best efforts, subject to receipt of necessary information from the Investorseach Holder, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 30 days after the Closing Filing Date (the “Required Effective Date”); provided, however, if the SEC requires the Company to amend or supplement its preliminary Registration Statement, the Required Effective Date shall be no later than 90 days after the Filing Date;
(c) c. use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus used in connection therewith prospectus (the “Prospectus”) included as part of the Registration Statement as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to (the Investor's Shares purchased hereunder, “Effectiveness Period”) ending on the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor all Holders may sell all Shares then Registrable Securities held by the Investor without restriction by the volume limitations of Holders pursuant to Rule 144(e) of 144 under the Securities Act of 1933, as amended (the “Securities Act”), or any successor rule (iii“Rule 144”) or (ii) such time as all Shares purchased Registrable Securities held by such Investor in this Offering the Holders have been sold pursuant to a registration statement;statement or Rule 144, and to notify each Holder promptly upon such Registration Statement and each post-effective amendment thereto, being declared effective by the SEC; provided, however, if (x) after such Registration Statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency, court or other person for any reason not attributable to the Holders and such interference is not thereafter eliminated or (y) the conditions specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure by the Holders, then the Company shall use its best efforts to cause such condition or conditions to be remedied and register the Registrable Securities in accordance herewith as soon as possible.
(d) d. furnish to the Investor with respect to the Shares registered under the Registration Statement any Holder such number of copies of the Registration Statement, Prospectuses Statement and Preliminary Prospectuses in conformity with the requirements of the Securities Act and Prospectus (including supplemental prospectuses) as such other documents as the Investor Holder may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares Registrable Securities by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary ProspectusesHolder;
(e) e. file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, each Holder; provided, however, that the Company shall not be required to 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;
(f) f. bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph (a) through (e) of this Section 7.1 1 and the registration of the Shares Registrable Securities pursuant to the Registration Statement; and, whether or not such registration becomes effective;
(g) g. advise the Investors each Holder, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will shall promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.; and
(h) With h. with a view to making available to the Investor each Holder the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor each Holder to sell Shares Registrable Securities to the public without registration, the Company covenants and agrees to use its commercially reasonable efforts to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares Registrable Securities may be resold pursuant to Rule 144(k) 144 or any other rule of similar effect or of (B) such date as all of the Investor's Shares Registrable Securities shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Securities Exchange Act of 1934, as amended (“Exchange Act”); and (iii) furnish to the Investor upon request, as long as the Investor owns any Shareseach Holder, (A) a written statement by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the Company's ’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor such Holder of any rule or regulation of the SEC that permits the selling of any such Shares Registrable Securities without registration. The Company understands that the Investor each Holder disclaims being an underwriter, but acknowledges that a determination by the Investor being SEC that such Holder is deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.
Appears in 2 contracts
Samples: Registration Rights Agreement (Prides Capital Partners, LLC), Registration Rights Agreement (Ediets Com Inc)
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) as soon as practicable, but in no event later than fifteen days following the Closing Date (the “Filing Deadline”), prepare and file with the SEC, within 90 days after the Closing Date, Commission a registration statement Registration Statement on Form S-3 (the "Registration Statement"), relating to enable the resale of (x) the Conversion Shares, the Warrant Shares and the Condition Shares and (y) any shares of Common Stock issued or issuable directly or indirectly with respect to the securities referred to in clause (x) by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization (together, for purposes of this Section 7, the “Registrable Securities”) by the Investors Purchaser and the Other Purchasers from time to time on a The Nasdaq Capital Market, or the facilities of any other national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the InvestorsPurchasers, to cause the Commission to declare the Registration Statement to become effective as soon as practicable, but in no event later than 150 within 30 days after the Closing DateDate or, if the Commission reviews the Registration Statement, within 120 days after the Closing Date (the “Effective Deadline”);
(c) use its reasonable best efforts to promptly prepare and file with the SEC 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 current and effective for a period not exceeding, with respect to until (the Investor's Shares purchased hereunder, “Effectiveness Period”) the earlier earliest of (i) two years after the second anniversary effective date of the Closing DateRegistration Statement, or (ii) such time as the date on which the Investor may sell all Shares then held Registrable Securities become eligible for resale by the Investor without restriction by the volume limitations of non-affiliates pursuant to Rule 144(e144(k) of under the Securities ActAct or any other rule of similar effect, or (iii) such time as all Shares purchased by such Investor in this Offering of the Registrable Securities have been sold pursuant to a registration statementthe Registration Statement;
(d) so long as the Registration Statement is effective covering the resale of the Registrable Securities owned by the Purchaser, furnish to the Investor Purchaser with respect to the Conversion Shares, Warrant Shares and Condition Shares registered under the Registration Statement (and to each underwriter, if any, of such Conversion Shares, Warrant Shares and Condition Shares) such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act prospectuses and such other documents as the Investor Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares Registrable Securities by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary ProspectusesPurchaser;
(e) file documents required of the Company for normal blue sky Blue Sky clearance in states specified in writing by the Investor, Purchaser; provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph paragraphs (a) through (e) of this Section 7.1 and the registration of the Shares Registrable Securities pursuant to the Registration Statement, other than fees and expenses, if any, of counsel or other advisers to the Purchaser or the Other Purchasers (in each case except as otherwise provided herein) or underwriting discounts, brokerage fees and commissions incurred by the Purchaser or the Other Purchasers, if any, in connection with the offering of the Registrable Securities pursuant to the Registration Statement;
(g) file a Form D with respect to offer and sale of the Securities to the Purchaser as required under Regulation D under the Securities Act and to provide a copy thereof to the Purchaser promptly after filing; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With file, not later than the next business day after the Closing Date, a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Current Report on Form 108-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail with the Investor of any rule or regulation Commission disclosing all material terms of the SEC that permits transactions contemplated hereby in accordance with the selling of any such Shares without registrationapplicable Rules and Regulations. The Company understands that the Investor Purchaser disclaims being an underwriter, but the Investor Purchaser being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated . A questionnaire related to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with to be completed by the SEC.Purchaser is attached hereto as part of Appendix I.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Babyuniverse, Inc.), Securities Purchase Agreement (Babyuniverse, Inc.)
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) as soon as reasonably practicable, but in no event later than five business days following the later of (a) the date the Company files each Current Report on Form 8-K, or an amendment thereto on Form 8-K/A, containing the financial statements and information required by Item 9.01 of Form 8-K (each, an “Acquisition 8-K”) with respect to any acquisition that has been completed as of the date hereof, and, to the extent applicable, any pending acquisition which is contemplated pursuant to a written letter of intent entered into by the Company and the proposed acquisition target as of the date hereof (a “Pending Acquisition”), (b) the date the Company files its Annual Report on Form 10-K for the fiscal year ended December 31, 2011 and (c) the date the Company terminates all negotiations with respect to any Pending Acquisition that would require it to file an Acquisition 8-K (the “Filing Deadline”), prepare and file with the SEC, within 90 days after Commission the Closing Date, a registration statement Registration Statement on Form S-3 (the "Registration Statement"), relating to enable the resale of the Shares by the Investors Purchaser and the Other Purchasers from time to time on a The Nasdaq Global Select Market, or the facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the InvestorsPurchasers, to cause the Commission to declare the Registration Statement effective by the earlier of (i) 3 days after the Commission has advised the Company that the Registration Statement has not been selected for review by the Commission, (ii) 3 days after the Commission has advised the Company the Commission has no more comments with respect to become effective as soon as practicable, but in no event later than 150 the Registration Statement or (iii) 90 days after the Closing DateDate (each of (i), (ii) and (iii), the “Effectiveness Deadline”);
(c) use its reasonable best efforts by 9:30 a.m., New York City time, on the second business day following the date the Registration Statement is declared effective by the Commission, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement;
(d) promptly prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, until the earlier of (i) the second anniversary date as of which the Investors may sell all of the Closing Date, Shares covered by such Registration Statement without restriction pursuant to Rule 144 and without the requirement to be in compliance with Rule 144(c)(1) (or any successor thereto) promulgated under the Securities Act or (ii) the date on which the Investor may sell Investors shall have sold all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased covered by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement. For the purpose of this Agreement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all “Investor” means a Purchaser or any transferee or assignee thereof to whom a Purchaser assigns its rights as a holder of the Shares under this Agreement and who agrees to become bound by the Investor, provided, however, that the obligation provisions of the Company this Agreement and any transferee or assignee thereof to deliver copies whom a transferee or assignee assigns its rights as a holder of Prospectuses or Preliminary Prospectuses Shares under this Agreement and who agrees to the Investor shall be subject to the receipt become bound by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary Prospectusesthis Agreement;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (Acacia Research Corp)
Registration Procedures and Expenses. The Company shall: ------------------------------------is obligated to do the following:
(a) The Company shall use its commercially reasonable efforts to prepare and file with the SECCommission, within 90 days not later than the second business day after the Closing Datedate on which the Company files its annual report on Form 10-K for its fiscal year ending December 31, 2006 with the SEC, a registration statement on Form S-3 (or such other registration form that the "Registration Statement"), Company may then be eligible to enable use) in order to register with the Commission the resale by the Purchasers, from time to time, of the Shares by through Nasdaq or the Investors from time to time on a facilities of any national securities exchange on which the Company’s Common Stock is then traded, or in privately-negotiated transactions;transactions (a “Registration Statement”). The Company shall use its commercially reasonable efforts to cause such Registration Statement to be declared effective as soon thereafter as reasonably practicable.
(b) If such a Registration Statement has been filed, the Company shall use its commercially reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 days after the Closing Date;
(c) use its reasonable best efforts to prepare and file with the SEC Commission (i) such amendments and supplements to the Registration Statement and the Prospectus prospectus used in connection therewith therewith, (ii) such SEC reports and (iii) such other filings required by the Commission, in each case as may be necessary to keep the Registration Statement current effective and effective for a period not exceeding, with respect to misleading until the Investor's Shares purchased hereunder, the earlier earliest of (iA) the second anniversary date of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iiiB) such time as all of the Shares purchased held by such Investor in this Offering have been the Purchasers can be sold within a given three-month period pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered Rule 144 under the Registration Statement such number of copies Securities Act. Notwithstanding the foregoing, following the effectiveness of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements Company may, at any time, suspend the effectiveness of the Securities Act Registration Statement for up to 60 days, as appropriate (a “Suspension Period”), by giving notice to the Purchasers, if the Company shall have determined that the Company may be required to disclose any material corporate development. Notwithstanding the foregoing, the Company may not suspend the effectiveness of the Registration Statement more than twice during any twelve-month period. Each Purchaser agrees that, upon receipt of any notice from the Company of a Suspension Period, such Purchaser will not sell any Shares pursuant to the Registration Statement until (i) such Purchaser is advised in writing by the Company that the use of the applicable prospectus may be resumed, (ii) such Purchaser has received copies of any additional or supplemental or amended prospectus, if applicable, and (iii) such other documents as the Investor may reasonably request, Purchaser has received copies of any additional or supplemental filings which are incorporated or deemed to be incorporated by reference in such prospectus.
(c) In order to facilitate the public sale or other disposition of all or any of the Shares by the Investoreach Purchaser, provided, however, that the obligation of the Company shall furnish to deliver each Purchaser with respect to the Shares registered under the Registration Statement such number of copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply prospectuses, prospectus supplements and preliminary prospectuses as such Purchaser reasonably requests in conformity with the applicable provisions requirements of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;Act.
(ed) The Company shall file any documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, each Purchaser; provided, however, that the Company shall not be required to 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;.
(fe) Other than fees and expenses, if any, of counsel or other advisers to the Purchasers, which fees and expenses shall be borne by the Purchasers, the Company shall bear all expenses (exclusive of any brokerage fees, underwriting discounts and commissions) in connection with the procedures in paragraph paragraphs (a) through (ed) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued8.1.
(hf) With a view to making available to the Investor Purchasers the benefits of Rule 144 promulgated under the Securities Act (or its successor rule“Rule 144”) and any other rule or regulation of the SEC Commission that may at any time permit the Investor a Purchaser to sell Shares to the public without registration or pursuant to registration, the Company covenants and agrees to use its commercially reasonable efforts to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all the second anniversary of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect Closing Date or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC Commission in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor any Purchaser upon request, as long as the Investor Purchaser owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K annual or Quarterly Report on Form 10-Qquarterly report of the Company, and (C) such other information as may be reasonably requested in order to avail the Investor any Purchaser of any rule or regulation of the SEC Commission that permits the selling of any such Shares without registration. The Company understands that registration under the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECSecurities Act.
Appears in 2 contracts
Samples: Common Stock Purchase Agreement (Corcept Therapeutics Inc), Common Stock Purchase Agreement (Corcept Therapeutics Inc)
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) subject to receipt of reasonably necessary information from the holder or holders as the case may be, from time to time, of the Registrable Securities (as defined below) (the “Holder” or “Holders”), prepare and file with the Securities and Exchange Commission (“SEC”), within 90 sixty (60) days after the Closing Date (the “Required Filing Date”), a Registration Statement on Form SB-2 (except if the Company is not then eligible to register on Form SB-2, in which case such registration shall be on another appropriate form in accordance herewith) (collectively, together with any registration statement on Form S-3 filed pursuant to clause (b) below, the "“Registration Statement"), Statements”) to enable the resale of the Shares by the Investors Holders from time to time on a national securities exchange of (x) the Shares issuable, (y) the Warrant Shares issuable and (z) the shares of Common Stock issued or in privately-negotiated transactionsissuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing (collectively, the “Registrable Securities”);
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investorseach Holder, to cause the each Registration Statement to become effective as soon as practicable, but in no event later than 150 one hundred twenty (120) days after the Closing applicable Required Filing Date;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement Statements and the Prospectus used in connection therewith as may be necessary to keep the each Registration Statement current and effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, ending on the earlier of (i1) the second anniversary of the Closing DateClosing, (ii2) the date on which the Investor Holders may sell all Shares then held by the Investor without restriction by the volume limitations Registrable Securities pursuant to paragraph (k) of Rule 144(e) of 144 under the Securities Act, Act or any successor rule (“Rule 144”) or (iii3) such time as all Shares Registrable Securities purchased by such Investor Holder in this the Offering have been sold pursuant to a registration statementstatement or Rule 144 (the “Effectiveness Period”), and to notify each Holder promptly upon each Registration Statement and each post-effective amendment thereto, being declared effective by the SEC;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement any Holder such number of copies of the Registration Statement, Statements and the Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents (including supplemental prospectuses) as the Investor Holder may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares Registrable Securities by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary ProspectusesHolder;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, any Holder; provided, however, that the Company shall not be required to 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;
(f) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph (a) through (e) of this Section 7.1 1 and the registration of the Shares Registrable Securities pursuant to the Registration Statement; andStatements;
(g) advise the Investors Holders, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the each Registration Statement or of the initiation of any proceeding for that purpose; and the Company it will promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.; and
(h) With with a view to making available to the Investor Holders the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor Holders to sell Shares Registrable Securities to the public without registration, the Company covenants and agrees to use its commercially reasonable efforts to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares Holder’s Registrable Securities may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares Holders’ Registrable Securities shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shareseach Holder, (A) a written statement by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the Company's ’s most recent Annual Report on Form 10-K KSB or Quarterly Report on Form 10-QQSB, and (C) such other information as may be reasonably requested in order to avail the Investor Holder of any rule or regulation of the SEC that permits the selling of any such Shares Registrable Securities without registration. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 1 that each Holder shall furnish to the Company a completed Questionnaire in the form attached hereto as Exhibit A. The Company understands that the Investor each Holder disclaims being an underwriter, but acknowledges that a determination by the Investor being SEC that the Holder is deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.
Appears in 2 contracts
Samples: Registration Rights Agreement (Symbollon Corp), Registration Rights Agreement (Symbollon Corp)
Registration Procedures and Expenses. The Parent Company shall cause the Subsidiary Company to, and the Subsidiary Company shall: ------------------------------------:
(a) prepare and use its best efforts to file with the SECSEC not later than September 15, within 90 days after 1997 a shelf registration statement under the Closing DateSecurities Act on Form S-3, if the Subsidiary Company is eligible to file a registration statement under such form (and if the Subsidiary Company is not eligible to file a registration statement under Form S-3, to file with the SEC a registration statement under the Securities Act on Form S-3 (the "Registration Statement"S-1 or any other form which is appropriate), to enable register the resale of the Conversion Shares and Warrant Shares, and to use its best efforts to cause such registration statement to be declared effective by the Investors from time SEC by not later than December 15, 1997. Such registration statement will also cover shares issuable upon conversion of Series A Preferred Stock of CXI sold by CXI pursuant to time on a national securities exchange or in privately-negotiated transactionscertain Stock Purchase Agreement dated as of August 15, 1997;
(b) use its reasonable best efforts, subject to receipt of necessary information from the InvestorsPurchaser, to cause the such Registration Statement to become effective as soon promptly after filing as practicable, but in no event later than 150 days after the Closing Date;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the such Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the such Registration Statement current and effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, the earlier until termination of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time obligation as all Shares purchased by such Investor provided in this Offering have been sold pursuant to a registration statementSection 8.9 below;
(d) furnish to the Investor Purchaser with respect to the Shares CXI Common Stock registered under on the Registration Statement (and to each underwriter, if any, of such CXI Common Stock) such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares CXI Common Stock by the Investor, Purchaser; provided, however, that the obligation of the Subsidiary Company to deliver copies of Prospectuses or Preliminary Prospectuses prospectuses to the Investor Purchaser shall be subject to the receipt by the Subsidiary Company of reasonable assurances from the Investor Purchaser that the Investor Purchaser 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 such Prospectuses or Preliminary Prospectusesprospectuses;
(e) file such documents as may be required of the Subsidiary Company for normal blue sky securities law clearance for the resale of the Common Stock in which states specified in writing of the United States as may be reasonably requested by the Investor, Purchaser; provided, however, that the Subsidiary Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.with
Appears in 2 contracts
Samples: Securities Purchase Agreement (Commodore Environmental Services Inc /De/), Securities Purchase Agreement (Commodore Environmental Services Inc /De/)
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) prepare and file with the SEC, within 90 days after the Closing Date, a registration statement on Form S-3 (the "Registration Statement"), to enable the resale of the Shares by the Investors from time to time on a national securities exchange or in privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicablepracticable after the Closing, but in no event later than 150 three (3) business days after the Closing Date;
(c) use its reasonable best efforts to Closing, prepare and file with the SEC Commission a Resale Registration Statement (as defined below) covering the resale by the Merrxxx Xxxcx Xxxties, from time to time, of a number of Shares equal to the number of Purchase Shares in any of the manners specified in the Swap Agreement (the "Initial Resale Registration Statement") and use its best efforts to obtain effectiveness of the Initial Resale Registration Statement as promptly as practicable following such filing. If the total number of Shares exceeds the number of Shares covered by the Initial Resale Registration Statement, then the Company shall promptly prepare and file with the Commission such additional Resale Registration Statement or Statements as shall be necessary to cover the resale by the Merrxxx Xxxcx Xxxties of such excess Shares in the same manner as contemplated by the Initial Registration Statement for the Shares covered thereby (each, an "Additional Resale Registration Statement"); provided that prior to issuing any such excess Shares to the Merrxxx Xxxcx Xxxties, the Company shall cause such Resale Registration Statement to have become effective. For purposes of this Purchase Agreement, "Resale Registration Statement" means the Initial Resale Registration Statement, any Additional Resale Registration Statement or any other registration statement under the Securities Act on Form S-3 covering the resale by the Merrxxx Xxxcx Xxxties of up to a specified number of Shares, filed and maintained continuously effective by the Company pursuant to the provisions of this Section 7, including the prospectus contained therein (the "Resale Prospectus"), any amendments and supplements to the Registration Statement such registration statement, including all post-effective amendments thereto, and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement current all exhibits and effective for a period not exceedingall material incorporated by reference into such registration statement. If, with respect pursuant to the Investor's Shares purchased hereunder, the earlier of (i) the second anniversary terms of the Closing DateSwap Agreement, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) either of the Securities Act, or (iii) such time as all Merrxxx Xxxcx Xxxties desires to sell any Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish prior to the Investor with respect to the Shares registered under the Registration Statement such number of copies 19 effectiveness of the Initial Resale Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, Company acknowledges that the obligation of Merrxxx Xxxcx Xxxties may elect to use for effecting such resales the Company to deliver copies of Prospectuses or Preliminary Prospectuses to Company's existing registration statement on Form S-3 (File No. 333-38071) (the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, however, that the "Existing Shelf Registration Statement"). The Company shall not be required use its best efforts to 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;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending maintain the effectiveness of the Existing Shelf Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares Initial Registration Statement is declared effective and shall have been resold; (ii) file cooperate with the SEC Merrxxx Xxxcx Xxxties in a timely manner all reports and other documents required the preparation of the Company under the Exchange Act; and (iii) furnish any prospectus supplement to the Investor upon request, as long as prospectus contained in the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Existing Shelf Registration Statement with the SEC.Statement;
Appears in 2 contracts
Samples: Purchase Agreement (Crescent Real Estate Equities Co), Purchase Agreement (Crescent Real Estate Equities Co)
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) prepare and file a Registration Statement with the SEC, SEC within 90 forty-five (45) days after following the Closing Date, a registration statement Date to register the Registrable Shares on Form S-3 under the Securities Act (providing for shelf registration of such Registrable Shares under SEC Rule 415) or, only if the "Registration Statement")Company is not eligible to use Form S-3, on such other form which is appropriate to enable the register such Registrable Shares for resale of the Shares by the Investors from time to time on a national securities exchange or in privately-negotiated transactionsby the Purchasers;
(b) use its reasonable best efforts, subject to receipt of necessary information from the InvestorsPurchasers, to cause the any such Registration Statement filed pursuant to Section 7.1(a) above to become effective as soon promptly after filing of such Registration Statement as practicable, practicable but in no any event later than 150 by the date (the “Effectiveness Deadline Date”) that is ninety (90) days after following the Closing Date; provided, however, that in the event that the Registration Statement is reviewed by the SEC (subject to the exception contained in 7.1(b)(1)), then the Effectiveness Deadline Date shall mean, with respect to such Registration Statement, the date that is one hundred twenty (120) days following the Closing Date;
(1) notwithstanding the foregoing, if the SEC reviews the Registration Statement and provides comments solely relating to the Company’s absence of certain Part II or Part III information from the Company’s Annual Report on Form 10-K for the year ended December 31, 2008 (similar to the SEC comment letter issued to the Company March 25, 2008), then such comments shall not be considered a “review” for purposes of Section 7.1(b) and the Effectiveness Deadline Date in such case shall be 90 days from the Closing Date;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the such Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the such Registration Statement current and continuously effective for a period not exceedinguntil termination of such obligation as provided in Section 7.5 below, with respect subject to the Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold Company’s right to suspend pursuant to a registration statementSection 7.4;
(d) furnish to the Investor with respect each Purchaser (and to the Shares registered under the Registration Statement each underwriter, if any, of such Registrable Shares) such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor Purchasers may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary ProspectusesPurchasers;
(e) file such documents as may be required of the Company for normal blue sky securities law clearance for the resale of the Registrable Shares in such states specified in writing of the United States as may be reasonably requested by the Investor, each Purchaser; provided, however, that the Company shall not be required in connection with this paragraph (e) to qualify to do business as a foreign corporation or execute a general consent to service of process in any jurisdiction in which it is not now so qualified or has not so consentedjurisdiction;
(f) advise each Purchaser promptly:
(1) of the effectiveness of the Registration Statement or any post-effective amendments thereto;
(2) of any request by the SEC for amendments to the Registration Statement or amendments to the prospectus or for additional information relating thereto;
(3) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Registrable Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes; and
(4) of the existence of any fact and the happening of any event that makes any statement of a material fact made in the Registration Statement, the prospectus and amendment or supplement thereto, or any document incorporated by reference therein, untrue, or that requires the making of any additions to or changes in the Registration Statement or the prospectus in order to make the statements therein not misleading;
(g) use its best efforts to cause all Registrable Shares to be listed on each securities exchange, if any, on which equity securities by the Company are then listed; and
(h) bear all expenses in connection with the procedures in paragraph paragraphs (a) through (eg) of this Section 7.1 and the registration of the Registrable Shares pursuant to on such Registration Statement and the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge satisfaction of the issuance blue sky laws of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issuedstates.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Affymax Inc), Securities Purchase Agreement (Affymax Inc)
Registration Procedures and Expenses. (a) The Company shall: ------------------------------------
(a) prepare and file with the SEC, within 90 days after the Closing Date, a registration statement on Form S-3 (the "Registration Statement"), to enable the resale of the Shares by the Investors from time to time on a national securities exchange or in privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as reasonably practicable, but in no event later than 150 thirty (30) days after following the Closing Date;
Date (c) use its reasonable best efforts to the "FILING DATE"), prepare and file with the SEC Commission a registration statement on Form SB-2 relating to the sale of the shares issuable upon the exercise of the Warrants and the conversion of the Notes (together with any shares of Common Stock issued as a dividend or other distribution with respect to, or in exchange for, or in replacement of, such shares, the "REGISTRABLE SHARES") by the Purchasers from time to time on Nasdaq or the facilities of any national securities exchange or inter-dealer quotation system on which the Common Stock is then traded or in privately negotiated transactions (such registration statement, the "REGISTRATION STATEMENT"). If Form SB-2 is not available at that time, the Company will file a registration statement or such form as is then available to effect a registration of the Registrable Shares, subject to the consent of a majority of the Registrable Shares, which consent shall not be unreasonably withheld.
(b) The Company shall use its best efforts to cause the Commission to declare the Registration Statement effective within ninety (90) calendar days after the Closing Date (the "REQUIRED EFFECTIVE DATE"). However, so long as the Company filed the Registration Statement by the Filing Date, if the Registration Statement receives Commission review, then the Required Effective Date will be the one hundred twentieth (120th) calendar day after the Closing Date. The Company's best efforts will include, but not be limited to, promptly responding to all comments received from the staff of the Commission. If the Company receives notification from the Commission that the Registration Statement will receive no action or review from the Commission, then the Company will, subject to its rights under this Agreement, use its best efforts to cause such Registration Statement to become effective within five (5) business days after such Commission notification.
(c) The Company shall use its best efforts to promptly prepare and file with the Commission such amendments and supplements to the Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, until the earlier of (i) the second anniversary of three years after the Closing Date, Date and (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Registrable Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;the Registration Statement.
(d) The Company shall furnish (i) to the Investor each Purchaser with respect to the Registrable Shares registered under by e-mail or other prompt means one copy of the prospectus promptly after effectiveness of the Registration Statement and in any case before the next opening of the principal market for the Registrable Shares and (ii) to each Purchaser with respect to the Registrable Shares (and to each underwriter, if any, of the Registrable Shares) such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act prospectuses and such other documents as the Investor such Purchaser may reasonably requestrequest within a reasonable time, in order to facilitate the public sale or other disposition of all or any of the Registrable Shares held by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary Prospectuses;Purchaser.
(e) The Company shall file documents required of the Company for normal blue sky Blue Sky clearance in states specified in writing by any Purchaser and reasonably acceptable to the Investor, Company; provided, however, that the Company shall not be required to (i) qualify to do business or consent to service of process in any jurisdiction where it would not otherwise be required to qualify but for this Section 10.1; (ii) subject itself to taxation in any such jurisdiction; (iii) provide any undertakings that cause material expense or burden to the Company; or (iv) make any change to its organizational documents, which it is not now so qualified or has not so consented;in each case the Board determines to be contrary to the best interests of the Company and its stockholders.
(f) The Company shall use its best efforts to cause all Registrable Shares to be listed on each securities exchange or inter-dealer quotation system on which similar securities issued by the Company are then listed or traded, assuming such listing is required to permit transactions in the Registered Securities on such exchange or quotation system.
(g) The Company shall bear all expenses in connection with the procedures in paragraph paragraphs (a) through (ef) of this Section 7.1 10.1 and the registration of the Registrable Shares pursuant to the Registration Statement; and, including the reasonable fees and expenses of one legal counsel to the Purchasers who shall be selected by the BV Funds ("PURCHASERS' COUNSEL"), but excluding underwriting discounts, brokerage fees and commissions incurred by the Purchasers.
(gh) advise The Company shall promptly notify the Investors promptly after it shall receive notice or obtain knowledge Purchasers of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or Statement, and any post-effective amendments thereto, as well as of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement receipt by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if stop orders of the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request Commission with respect to the SEC shall be extended to Registration Statement and the earlier lifting of any such order.
(i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of The Company shall permit Purchasers' Counsel to review the Registration Statement and all amendments and supplements thereto, and any comments made by the staff of the Commission concerning the transactions contemplated by the Registration Statement and the Company's responses thereto, within a reasonable period of time prior to the filing thereof with the SECCommission (or, in the case of comments made by the staff of the Commission, within a reasonable period of time following the receipt thereof by the Company).
(j) Notwithstanding the foregoing, it shall be a condition precedent to the obligations of the Company to take any action pursuant to paragraphs (a) through (f) of this Section 10.1 with respect to a Purchaser, that such Purchaser shall furnish to the Company such information regarding itself, the Registrable Shares to be sold by the Purchaser, and the intended method of disposition of such Registrable Shares as shall be required to effect the registration of the Registrable Shares, all of which information shall be furnished to the Company in writing specifically for use in the Registration Statement. For purposes of this Article 10, each Purchaser shall be deemed to hold the Registrable Securities held by such Purchaser and all Registrable Securities issuable upon the conversion of any Notes and the exercise of any Warrants held by such Purchaser. Notwithstanding any other provision of this Agreement, the Company may include in any Registration Statement shares issuable upon the exercise of any warrants issued as compensation to the brokers listed on Schedule 5.19.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) prepare and file a Resale Registration Statement (the “Mandatory Registration Statement”) with the SECCommission on or before November 28, within 90 2023 days after following the Closing Date (the “Filing Date, a registration statement ”) to register all of the Registrable Shares on Form S-3 under the Securities Act (providing for shelf registration of such Registrable Shares under Commission Rule 415). In the "Registration Statement")event that Form S-3 is not available for the registration of the Registrable Shares, to enable the Company shall register the resale of the Registrable Shares by on such other form as is available to the Investors from time to time on a national securities exchange or in privately-negotiated transactionsCompany;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investors, efforts to cause the such Mandatory Registration Statement to become be declared effective as soon as practicablewithin the earlier of (i) 30 days following the Filing Date (or, but in no the event later than 150 the staff of the Commission (the “Staff”) reviews and has written comments to the Mandatory Registration Statement, within 90 days after following the Closing Date) and (ii) the 5th Trading Day after the date the Company is notified (orally or in writing, whichever is earlier) by the Commission that the Mandatory Registration Statement will not be “reviewed” or will not be subject to further comments from the Staff (the earlier of the foregoing or the applicable date set forth in Section 4.2(j), the “Effectiveness Date”), such efforts to include, without limiting the generality of the foregoing, preparing and filing with the Commission any financial statements or other information that is required to be filed prior to the effectiveness of such Mandatory Registration Statement;
(c) notwithstanding anything contained in this Agreement to the contrary, in the event that the Commission limits the amount of Registrable Shares or otherwise requires a reduction in the number of Registrable Shares that may be included and sold by the Purchasers in the Mandatory Registration Statement (in each case, subject to Section 4.4), then the Company shall prepare and file (i) within 10 Trading Days of the first date or time that such excluded Registrable Shares may then be included in a Resale Registration Statement if the Commission shall have notified the Company that certain Registrable Shares were not eligible for inclusion in the Mandatory Registration Statement or, (ii) in all other cases, within 20 days following the date that the Company becomes aware that such additional Resale Registration Statement is required (the “Additional Filing Date”), a Resale Registration Statement (any such Resale Registration Statement registering such excluded Registrable Shares, an “Additional Registration Statement”) to register any Registrable Shares that have been excluded (or, if applicable, the maximum number of such excluded Registrable Shares that the Company is permitted to register for resale on such Additional Registration Statement consistent with Commission guidance), if any, from being registered on the Mandatory Registration Statement;
(d) not less than two (2) Trading Days prior to the filing of a Resale Registration Statement or any related prospectus or any amendment or supplement thereto, furnish via email to those Purchasers who have supplied the Company with email addresses, copies of all such documents proposed to be filed, which documents (other than any document that is incorporated or deemed to be incorporated by reference therein) will be subject to the review of such Purchasers. The Company shall reflect in each such document when so filed with the Commission such comments regarding the Purchasers and the plan of distribution as the Purchasers may reasonably and promptly propose no later than two (2) Trading Days after the Purchasers have been so furnished with copies of such documents as aforesaid;
(e) use its commercially reasonable best efforts to cause any such Additional Registration Statement to be declared effective as promptly as practicable following the Additional Filing Date, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the Commission any financial statements or other information that is required to be filed prior to the effectiveness of any such Additional Registration Statement;
(f) shall use commercially reasonable efforts to keep the Resale Registration Statement continuously effective under the Securities Act until the date that all Registrable Shares covered by such Registration Statement have been sold or can be sold publicly without restriction or limitation under Rule 144 (including, without limitation, the requirement to be in compliance with Rule 144(c)(1));
(g) promptly prepare and file with the SEC Commission such amendments and supplements to the such Resale Registration Statement Statements and the Prospectus prospectus used in connection therewith as may be necessary to keep the such Resale Registration Statement current Statements continuously effective and effective for free from any material misstatement or omission to state a period not exceedingmaterial fact therein until termination of such obligation as provided in Section 4.7 below, with respect subject to the Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold Company’s right to suspend pursuant to a registration statementSection 4.6;
(dh) furnish to the Investor with respect to the Shares registered under the Registration Statement Purchasers such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor Purchasers may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply with the applicable provisions of the Securities Act and of Purchasers;
(i) file such other securities or blue sky laws documents as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal securities law clearance for the resale of the Registrable Shares in such states of the United States as may be reasonably requested by the Purchasers and use its commercially reasonable efforts to maintain such blue sky clearance in states specified in writing by qualifications during the Investor, period the Company is required to maintain effectiveness of the Resale Registration Statements; provided, however, that the Company shall not be required in connection with this Section 4.2(i) to qualify to do business as a foreign corporation or execute a general consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(fj) upon notification by the Commission that the Resale Registration Statement will not be reviewed or is not subject to further review by the Commission, within three Trading Days following the date of such notification, request acceleration of such Resale Registration Statement (with the requested effectiveness date to be not more than two Trading Days later);
(k) upon notification by the Commission that the Resale Registration Statement has been declared effective by the Commission, the Company shall file the final prospectus under Rule 424 of the Securities Act (“Rule 424”) within the applicable time period prescribed by Rule 424;
(l) advise the Purchasers promptly:
(i) of the effectiveness of the Resale Registration Statement or any post-effective amendments thereto;
(ii) of any request by the Commission for amendments to the Resale Registration Statement or amendments to the prospectus or for additional information relating thereto;
(iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Resale Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Registrable Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes; and
(iv) of the existence of any fact and the happening of any event that makes any statement of a material fact made in the Resale Registration Statement, the prospectus and amendment or supplement thereto, or any document incorporated by reference therein, untrue, or that requires the making of any additions to or changes in the Resale Registration Statement or the prospectus in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) cause all Registrable Shares to be listed on each securities exchange, if any, on which equity securities by the Company are then listed; and
(n) bear all expenses in connection with the procedures in paragraph paragraphs (a) through (em) of this Section 7.1 4.2 and the registration of the Registrable Shares pursuant to on such Resale Registration Statement and the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge satisfaction of the issuance blue sky laws of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issuedstates.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Samples: Securities Purchase Agreement (Aligos Therapeutics, Inc.)
Registration Procedures and Expenses. The Company shall: ------------------------------------, following the conversion of the Shares into Common Stock, which shall occur upon the earlier of either (i) receipt of approval by the Company's stockholders of the terms of the issuance and sale of the Shares, upon such approval the Shares shall be converted into shares of Common Stock or (ii) the one-year anniversary of the Closing Date, upon which the Shares shall automatically be converted into shares of Common Stock (the earlier to occur of such dates, the "Conversion Date"):
(a) prepare and as soon as practicable, but in no event later than 30 days following the Conversion Date, file with the SEC, within 90 days after Commission the Closing Date, a registration statement Registration Statement on Form S-3 (relating to the "Registration Statement"), to enable the resale sale of the Underlying Shares by the Investors Purchaser from time to time on a through the automated quotation system of the Nasdaq National Market or the facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the InvestorsPurchasers, to cause the Commission to notify the Company of the Commission's willingness to declare the Registration Statement to become effective as soon as practicable, but in no event later than 150 within 60 days after the Closing DateRegistration Statement is filed by the Company;
(c) use its reasonable best efforts to prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, until the earlier of (i) the second anniversary of twenty-four months after the Closing Date, Date or (ii) the date on which the Investor Underlying Shares may sell all Shares then held be resold by the Investor Purchasers without restriction registration by the volume limitations reason of Rule 144(e144(k) of under the Securities Act, Act or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
any other rule of similar effect; (d) furnish to the Investor Purchaser with respect to the Underlying Shares registered under the Registration Statement (and to each underwriter, if any, of such Underlying Shares) such reasonable number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act prospectuses and such other documents as the Investor Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Underlying Shares by the InvestorPurchaser; PROVIDED, provided, howeverHOWEVER, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses prospectuses to the Investor Purchaser shall be subject to the receipt by the Company of reasonable assurances from the Investor Purchaser that the Investor Purchaser 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 such Prospectuses or Preliminary Prospectusesprospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------is obligated to do the following:
(a) From and after that date which is six months after the Closing Date, as defined in the Purchase Agreement, Motorola may request in writing that the Company prepare and file with the SEC, within 90 days after the Closing Date, a registration statement Commission one Registration Statement on Form S-3 (in order to register with the "Registration Statement"), to enable Commission the resale by Motorola of the Shares by Registrable Securities through AMEX or the Investors from time to time on a facilities of any national securities exchange on which the Company's Common Stock is then traded, or in privately-negotiated transactions;. The Company shall use its reasonable commercial efforts to cause such Registration Statement to be declared effective as soon thereafter as reasonably possible, and the Company shall use reasonable efforts to ensure the effectiveness of such Registration Statement for a period of 12 months from the later of the exercise of the Warrant, as defined in the Purchase Agreement, in full or the expiration of the Warrant; provided, however, that the Company shall have no obligation to ensure the effectiveness of such Registration Statement after such time as all of the capital stock of the Company which Motorola purchases under the Purchase Agreement is immediately resaleable under Rule 144 (as defined below) under the Securities Act. Notwithstanding the foregoing, the Company shall not be obligated to take any action to effect any such Registration pursuant to this Section 5.1(a) during the period starting with the date sixty (60) days prior to the Company's estimated date of filing of, and ending on the date 180 days immediately following the effective date of, an underwritten Registration pertaining to securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan), provided that the Company is actively employing all reasonable efforts in good faith to cause such Registration to become effective. Notwithstanding any other provision to the contrary in this Agreement, the Company shall be obligated to effect no more than one Registration Statement under this Agreement.
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 days after the Closing Date;
(c) use its reasonable best efforts to The Company shall prepare and file with the SEC Commission (i) such amendments and supplements to the Registration Statement and the Prospectus prospectus used in connection therewith therewith, (ii) such SEC Reports and (iii) such other filings required by the Commission, in each case as may be necessary to keep the Registration Statement current continuously effective and effective for a period not exceeding, with respect to misleading until the Investor's Shares purchased hereunder, the earlier earliest of (iA) the second fifth anniversary date of the Closing DateClosing, (iiB) the such date on which the Investor may sell as all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Registrable Securities Act, have been resold or (iiiC) such time as all Shares purchased of the Registrable Securities then held by such Investor in this Offering have been Motorola can be sold within a given three- month period pursuant to Rule 144 under the Securities Act. Notwithstanding the foregoing, following the effectiveness of the Registration Statement, the Company may, at any time, suspend the effectiveness of the Registration Statement for up to no longer than 30 days, as appropriate (a registration statement;"Suspension Period"), by giving notice to Motorola, if the Company shall have determined that the Company may be required to disclose any material corporate development. The Company will use its best efforts to minimize the length of any Suspension Period. Notwithstanding the foregoing, the Company may not suspend the effectiveness of the Registration Statement more than twice in any twelve (12) month period. Motorola agrees that, upon receipt of any notice from the Company of a Suspension Period, Motorola will not sell any Registrable Securities pursuant to the Registration Statement until (i) Motorola is advised in writing by the Company that the use of the applicable prospectus may be resumed, (ii) Motorola has received copies of any additional or supplemental or amended prospectus, if applicable, and (iii) Motorola has received copies of any additional or supplemental filings which are incorporated or deemed to be incorporated by reference in such prospectus.
(dc) In order to facilitate the public sale or other disposition of all or any of the Registrable Securities by Motorola, the Company shall furnish to the Investor Motorola with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statementprospectuses, Prospectuses prospectus supplements and Preliminary Prospectuses preliminary prospectuses as Motorola reasonably requests in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary Prospectuses;Act.
(ed) The Company shall file any documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, Motorola; provided, however, that the Company shall not be required to 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;.
(e) Other than fees and expenses, if any, of counsel or other advisers to Motorola, which fees and expenses shall be borne by Motorola, the Company shall bear all Registration Expenses.
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor Motorola the benefits of Rule 144 promulgated under the Securities Act (or its successor rule"Rule 144") and any other rule or regulation of the SEC that may at any time permit the Investor Motorola to sell Shares Registrable Securities to the public without registration or pursuant to registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all the fifth anniversary of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect Closing Date or (B) such date as all of the Investor's Shares Registrable Securities shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor Motorola upon request, as long as the Investor Motorola owns any SharesRegistrable Securities, (A) a written statement by the Company that it has complied with the reporting requirements of Rule 144 and of the Securities Act and Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K annual or Quarterly Report on Form 10-Qquarterly report of the Company, and (C) such other information as may be reasonably requested in order to avail the Investor Motorola of any rule or regulation of the SEC that permits the selling of any such Shares Registrable Securities without registration. The Company understands that registration under the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECSecurities Act.
Appears in 1 contract
Samples: Information and Registration Rights Agreement (Identix Inc)
Registration Procedures and Expenses. The Company shall: ------------------------------------
(a) Following the Closing, the Buyer shall use reasonable commercial efforts to prepare and file with the SEC, within 90 no later than 60 days after the Closing DateClosing, a registration statement statements on Form S-3 (in order to register with the "Registration Statement"), to enable SEC the resale of the Shares by the Investors Seller, from time to time on a time, of the Purchase Price Shares and the Warrant Shares through Nasdaq or the facilities of any national securities exchange or in privately-negotiated transactions;on which the Common Stock is then traded (a “Registration Statement”). Buyer shall use reasonable commercial efforts to cause such Registration Statement to be declared effective as promptly as practicable after filing.
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 days after the Closing Date;
(c) use its reasonable best efforts to Buyer shall prepare and file with the SEC (i) such amendments and supplements to the Registration Statement and the Prospectus prospectus used in connection therewith therewith, (ii) such Buyer SEC Reports and (iii) such other filings required by the SEC, in each case as may be necessary to keep the Registration Statement current continuously effective and effective for a period not exceeding, with respect to misleading until the Investor's Shares purchased hereunder, the earlier earliest of (iA) the second tenth anniversary date of the Closing DateClosing, (iiB) the such date on which the Investor may sell as all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, Purchase Price Shares and the Warrant Shares that are issuable under the Warrant have been resold or (iiiC) such time as all of the Purchase Price Shares purchased by such Investor in this Offering have been and the Warrant Shares that are issuable under the Warrant and capable of being exercised under the Warrant can be sold within a given three-month period pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered Rule 144 under the Registration Statement such number of copies Securities Act. Notwithstanding the foregoing, following the effectiveness of the Registration Statement, Prospectuses and Preliminary Prospectuses Buyer may, at any time, but no more than twice in conformity with any 12 month period, suspend the requirements effectiveness of the Securities Act and such other documents Registration Statement for up to no longer than 60 days as appropriate (a “Suspension Period”), by giving notice to the Investor Seller, if Buyer shall have determined that Buyer may reasonably requestbe required to disclose any material corporate development. Buyer will use reasonable commercial efforts to minimize the length of any Suspension Period. Seller agrees that, upon receipt of any notice from the Buyer of a Suspension Period, Seller will not sell any Purchase Price Shares or Warrant Shares pursuant to the Registration Statement until (i) Seller is advised in order to facilitate writing by Buyer that the public sale or other disposition of all or any use of the Shares applicable prospectus may be resumed, (ii) Seller has received copies of any additional or supplemental or amended prospectus, if applicable, and (iii) Seller has received copies of any additional or supplemental filings which are incorporated or deemed to be incorporated by reference in such prospectus. If Buyer shall give notice to Seller with respect to a Suspension Period, Buyer shall extend the period during which the Registration Statement shall be maintained effective pursuant to this Section 10.1(b) by the Investor, provided, however, that number of days during the obligation period from the date of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply with the applicable provisions of the Securities Act and giving of such other securities or blue sky laws as may be applicable in connection with any use of notice to and including the date when such Prospectuses or Preliminary Prospectuses;Suspension Period shall have ended.
(ec) Buyer shall file any documents required of the Company Buyer for normal blue sky clearance in states specified in writing by the Investor, Seller; provided, however, that the Company Buyer shall not be required to 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;.
(fd) Other than fees and expenses, if any, of counsel, accountants or other advisers to Seller, which fees and expenses shall be borne by Seller, the Buyer shall bear all expenses (exclusive of any brokerage fees, underwriting discounts and commissions) in connection with the procedures in paragraph Section 10.1, paragraphs (a) through (ed) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issuedArticle 10.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------
(a) prepare and Buyer will file with the SEC, within 90 thirty (30) days after following the Closing Datedelivery of any Buyer Ordinary Shares in respect of any Milestone Payment, a registration statement on Form S-3 X-0, Xxxx X-0 or other applicable form available to Buyer (the "“Registration Statement"), to enable ”) covering the resale to the public of all Buyer Ordinary Shares issued or to be issued to the Pre-Closing Holders pursuant to any Milestone Payment paid in Buyer Ordinary Shares by under this Agreement (the Investors from time to time on a national securities exchange or in privately-negotiated transactions;
(b) “Registrable Securities”). Buyer shall use its commercially reasonable best efforts, subject to receipt of necessary information from the Investors, efforts to cause the Registration Statement to become be declared effective by the SEC as soon as practicable, but in no event later than 150 . Within thirty (30) days after the Closing Date;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements of any subsequent issuance by Buyer of Buyer Ordinary Shares to the Pre-Closing Holders pursuant to the terms of this Agreement, Buyer will amend such Registration Statement and (or, if applicable, file a new Registration Statement) covering the Prospectus used in connection therewith as resale to the public of all such additional Buyer Ordinary Shares issued pursuant to this Agreement. Notwithstanding the foregoing sentences of this Section 7.5(a), Buyer may be necessary to keep postpone the filing or the effectiveness of a Registration Statement current or of a supplement or amendment thereto or suspend the use of an effective Registration Statement if and effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, extent the earlier Board of Directors of Buyer determines in good faith that such Registration Statement would (i) reasonably be expected to materially impede, delay, interfere with or otherwise have a material adverse effect on any material acquisition of assets (other than in the second anniversary ordinary course of the Closing Datebusiness), merger, consolidation, tender offer, financing or any other material business transaction by Buyer or (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations require disclosure of Rule 144(e) of the Securities Actinformation that has not been, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant and is otherwise not required to a registration statement;
(d) furnish be, disclosed to the Investor public, the premature disclosure of which Buyer, after consultation with respect outside counsel to the Shares registered under the Registration Statement such number of copies of the Registration StatementBuyer, Prospectuses believes would materially and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, adversely affect Buyer; provided, however, that the obligation Buyer may not invoke this right more than twice, or for an aggregate period of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investormore than 120 days, provided, however, that the Company shall not be required to 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;
twelve (f12) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issuedmonth period.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------
(a) as soon as reasonably practicable, but in no event later than 15 days following the Closing Date, prepare and file with the SEC, within 90 days after Commission the Closing Date, a registration statement Registration Statement on Form S-3 (or other available form relating to the "Registration Statement"), to enable the resale sale of the Shares by the Investors Purchaser and the Other Purchasers from time to time on a the Nasdaq National Market or the facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions;
(b) use its commercially reasonable best efforts, subject to receipt of necessary information from the InvestorsPurchasers, to cause the Registration Statement to become effective as soon as practicablepromptly following clearance by the Commission and, but in no event later than 150 any event, use its commercially reasonable efforts, subject to receipt of necessary information from the Purchasers, to cause the Commission to declare the Registration Statement effective within 75 days after the Closing Date;
(c) use its commercially reasonable best efforts to promptly prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of the Shares (subject to the Company receiving notification and all necessary information from the selling stockholders described therein and their respective transferees, assignees and donees) and keep the Registration Statement current effective and effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) free from any material misstatement or omission until the date on which the Investor Shares may sell all Shares then held be resold by non-affiliates of the Investor Company without restriction registration by the volume limitations reason of Rule 144(e144(k) of under the Securities Act, Act or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statementany other rule of similar effect;
(d) furnish to the Investor Purchaser with respect to the Shares registered under the Registration Statement (and to each underwriter, if any, of such Shares) such number of copies of the Registration Statement, Prospectuses prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act all amendments thereof or supplements thereto and such other documents as the Investor Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, Purchaser; provided, however, -------- ------- that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses prospectuses to the Investor Purchaser shall be subject to the receipt by the Company of reasonable assurances from the Investor Purchaser that the Investor Purchaser 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 such Prospectuses or Preliminary Prospectusesprospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, Purchaser and keep such qualification or registration in effect for so long as the Registration Statement is in effect; provided, -------- however, that the Company shall not be required to 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
(f) notify the holder of any Shares purchased hereunder as promptly as practicable (1) when a prospectus or any prospectus supplement or post-effective amendment with respect to the Registration Statement is proposed to be filed; (2) when the Registration Statement has become effective; (3) of any request by the Commission or any other Governmental Authority for amendments or supplements to the Registration Statement or related prospectus or for additional information; (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceeding for that purpose; or (5) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any Shares for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose;
(fg) provide a transfer agent and registrar for all Shares covered by the Registration Statement not later than the effective date of the Registration Statement;
(h) timely notify the Nasdaq National Market of the issuance of the Shares;
(i) bear all expenses in connection with the procedures in paragraph paragraphs (a) through (eh) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise , other than fees and expenses, if any, of counsel or other advisers to the Investors promptly after it shall receive notice Purchaser or obtain knowledge of the issuance of any stop order Other Purchasers or underwriting discounts, brokerage fees and commissions incurred by the SEC delaying Purchaser or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment Other Purchasers, if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registrationany. The Company understands that the Investor Purchaser disclaims being an underwriter, but the Investor Purchaser being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated . A questionnaire related to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with to be completed by the SEC.Purchaser is attached hereto as Appendix I. ----------
Appears in 1 contract
Samples: Purchase Agreement (Trimeris Inc)
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) within 90 days after the Closing, prepare and file with the SECSEC a Registration Statement (as defined below) covering the resale by the UBS Parties, within 90 days after from time to time, of the Closing DateShares (not to exceed a number of Shares equal to 130% of the number of Purchase Shares) through the facilities of the New York Stock Exchange, a registration statement the automated quotation system of The Nasdaq Stock Market or the facilities of any other national securities exchange on Form S-3 which the Company's common stock is then traded or in privately negotiated transactions (the "Initial Registration Statement"), . If the total number of Shares issued to enable the resale UBS Parties hereunder and under the Forward Stock Purchase Agreement exceeds the number of the Shares covered by the Investors from time to time on a national securities exchange or in privately-negotiated transactions;
(b) use its reasonable best effortsInitial Registration Statement, subject to receipt of necessary information from then the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 days after the Closing Date;
(c) use its reasonable best efforts to Company shall prepare and file with the SEC such additional Registration Statement or Statements as shall be necessary to cover the resale by UBS-LB of such excess Shares in the same manner as contemplated by the Initial Registration Statement for the Shares covered thereby (each, an "Additional Registration Statement"); provided that prior to delivering certificates evidencing any such excess Shares to UBS-LB, the Company shall cause such Registration Statement to have become effective. The Company agrees that no other shareholder of the Company shall have any right (which has not been waived or expired) to require the Company to register the sale of any shares owned by such shareholder under the Initial or any Additional Registration Statement. For purposes of this Purchase Agreement, "Registration Statement" means a registration statement under the Securities Act on Form S-3 covering the resale by one or both UBS Parties of up to a specified number of Shares, filed and maintained effective by the Company pursuant to the provisions of this Section 8, including the Prospectus (as defined below) contained therein, any amendments and supplements to the Registration Statement such registration statement, including all post-effective amendments thereto, and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement current all exhibits and effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held material incorporated by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) reference into such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Samples: Purchase Agreement (Starwood Hotel & Resorts Worldwide Inc)
Registration Procedures and Expenses. The Company shall: ------------------------------------
(a) as soon as reasonably practicable, but in no event later than ten (10) days following the Closing Date (provided that the Purchasers have provided the Company with completed Registration Statement Questionnaires prior to such date), prepare and file with the SEC, within 90 days after Commission the Closing Date, a registration statement Registration Statement on Form S-3 (relating to the "Registration Statement"), to enable the resale sale of the Shares by the Investors Purchaser and the other Purchasers from time to time on a the Nasdaq National Market or the facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions;
(b) provide a copy of the Registration Statement to the Purchaser for its review and comment prior to filing the Registration Statement with the Commission;
(c) notify the Purchaser promptly upon being informed whether the staff of the Commission intends to review or not review the Registration Statement;
(d) file a request for acceleration of the Registration Statement with the commission within five business days after the date the Company receives notice from the staff of the Commission that the Commission does not intend to review the Registration Statement or has completed such review;
(e) use its reasonable best efforts, subject to receipt of necessary information from the InvestorsPurchasers and notwithstanding the liquidated damages provision provided below in this Section 7.1, to cause the Commission to declare the Registration Statement to become effective as soon as practicable, but in no event later than 150 by the date which is 90 days after the Closing Date (the "Effectiveness Target Date");
(cf) use its reasonable best efforts to promptly prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to until the Investor's Shares purchased hereunder, the earlier earliest of (i) two years after the second anniversary effective date of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities ActRegistration Statement, or (iiiii) such time as all the Shares purchased become eligible for resale by such Investor in this Offering have been sold non-affiliates pursuant to a registration statementRule 144(k) under the Securities Act;
(dg) furnish to the Investor Purchaser with respect to the Shares registered under the Registration Statement (and to each underwriter, if any, of such Shares) such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act prospectuses and such other documents as the Investor Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary ProspectusesPurchaser;
(eh) file documents required of the Company for normal blue sky Blue Sky clearance in states specified in writing by the Investor, Purchaser; provided, however, that the Company shall not be required to 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;
(fi) bear all expenses in connection with the procedures in paragraph paragraphs (a) through (eh) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement, other than fees and expenses, if any, of counsel or other advisers to the Purchaser or the Other Purchasers or underwriting discounts, brokerage fees and commissions incurred by the Purchaser or the Other Purchasers, if any;
(j) file a Form D with respect to the Shares as required under Regulation D and to provide a copy thereof to the Purchaser promptly after filing;
(k) issue a press release describing the transactions contemplated by this Agreement not later than 9:00 a.m., New York City time, on the first business day after the date of this Agreement; and
(gl) advise make available, while the Investors promptly after it Registration Statement is effective and available for resale, its Chief Executive Officer, Chief Financial Officer, and Chief Administrative Officer for questions regarding information which the Purchaser may reasonably request in order to fulfill any due diligence obligation on its part; provided however, that such information may not include material, non-public information. If the Commission does not declare the Registration Statement effective by the Effectiveness Target Date, the Company shall receive notice or obtain knowledge become obligated to pay to the Purchaser an amount in cash, as liquidated damages and not as a penalty, equivalent to 1% of the issuance of any stop order aggregate purchase price paid by the SEC delaying Purchaser for any Shares then held by the Purchaser or suspending its affiliates for each full month that effectiveness is delayed beyond the effectiveness Effectiveness Target Date (pro-rated on a daily basis for partial months). The Company shall pay in full any liquidated damages pursuant to this Section 7.1 within 30 days after the date on which the Company becomes obligated to pay such damages. Provided that the Company continues to use its reasonable best efforts to cause the Registration Statement to be declared effective by the Commission in accordance with this Agreement, the liquidated damages provided in this paragraph shall constitute the sole and exclusive remedy of the Purchaser in connection with any failure of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement declared effective by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registrationTarget Effective Date. The Company understands that the Investor Purchaser disclaims being an underwriter, but the Investor Purchaser being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if . A draft of the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing proposed form of the Registration Statement with is included in the SEC.Private Placement Memorandum and a questionnaire related thereto to be completed by the Purchaser is attached hereto as Appendix I.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------
(a) The Company shall prepare and file with the SECCommission, within 90 days after the Closing Dateas promptly as reasonably practicable following Closing, a registration statement on Form S-3 F-3 (the "Registration Statement"or any successor to Form F-3), to enable covering the resale of the Shares by Registrable Securities (as defined below) (the Investors from time to time on a national securities exchange or in privately-negotiated transactions;
(b“Resale F-3 Registration Statement”) and shall use its commercially reasonable best efforts, subject to receipt of necessary information from the Investors, efforts to cause the such Resale F-3 Registration Statement to become be declared effective under the Securities Act by the Commission as soon as practicable, but reasonably practicable thereafter and in any event no event later than 150 180 days after the Closing Date;
. For purposes of this Agreement, the term “Registrable Securities” shall mean (ci) use its reasonable best efforts the Warrants, (ii) the Warrant Shares; and (iii) any Common Stock of the Company issued as (or issuable upon the conversion or exercise of any warrant, right or other security which is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of, any Warrants or Warrant Shares. In the event that Form F-3 (or any successor form) is or becomes unavailable to register the resale of the Registrable Securities at any time prior to the expiration of the Purchasers’ registration rights pursuant to this Article V, the Company shall prepare and file with the SEC Commission, as promptly as reasonably practicable following the Closing, a registration statement on Form F-1 (or any successor to Form F-1), covering the resale of the Registrable Securities (the “Resale F-1 Registration Statement” and collectively with the Resale F-3 Registration Statement, the “Resale Registration Statement”) and shall use its commercially reasonable efforts to cause such amendments and supplements to the Resale F-1 Registration Statement to be declared effective under the Securities Act by the Commission as soon as reasonably practicable thereafter and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of any event no later than 180 days after the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of . If the Company is not initially eligible to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by use Form F-3, and the Company of reasonable assurances from subsequently becomes eligible to use Form F-3 during the Investor that the Investor will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws Effectiveness Period (as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investordefined below), provided, however, that the Company shall not be required to qualify to do business or consent to service file, as promptly as reasonably practicable, a new Resale F-3 Registration Statement covering the resale of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection the Registrable Securities and replace the Resale F-1 Registration Statement with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the new Resale F-3 Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending Statement upon the effectiveness of the new Resale F-3 Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issuedStatement.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Samples: Securities Purchase Agreement (Tanzanian Gold Corp)
Registration Procedures and Expenses. The Company shall: ------------------------------------will:
(a) 1.1.1 subject to receipt of necessary information from each Purchaser, including all information set forth in Schedule 1 attached hereto, use commercially reasonable efforts to prepare and file with the U.S. Securities and Exchange Commission (the “SEC”), within 90 sixty (60) days after the Closing Date(the “Filing Date Deadline”), a registration statement (the “Registration Statement”) on Form S-3 S-1 (or such appropriate form as is available to the "Registration Statement"), Company) to enable the resale of all of the Shares shares of Common Stock issuable upon conversion of the Notes and exercise of the Warrants by the Investors from time to time Purchasers and the placement agent under the Purchase Agreement (collectively, the “Registrable Shares”) on a national securities exchange delayed or continuous basis under Rule 415 of the Securities Act until the earlier of: (1) the date on which all such shares have been resold or otherwise transferred pursuant to the Registration Statement; (2) the date on which all such shares are transferred in privately-negotiated transactionscompliance with Rule 144 under the Securities Act or may be sold or transferred pursuant to Rule 144 under the Securities Act (or any other similar provisions then in force) without any volume or manner of sale restrictions thereunder (the “Rule 144 Eligibility Date”); or (3) the date on which all such shares cease to be outstanding (whether as a result of redemption, repurchase and cancellation or otherwise); provided, however, that, with respect to the Registration Statement to be filed pursuant to this Section 1.1.1 (the “Initial Registration Statement”) and any other registration Statement, the Company will not be liable to the Purchasers or placement agent for any liquidated damages for any Effectiveness Failure pursuant to Section 1.5 if (A) such Effectiveness Failure is the result of any delay in effectiveness of the Registration Statement relating to the SEC’s not permitting the registration under Rule 415 of the Securities Act of any number of shares of Common Stock in excess of thirty percent (30%) of the Company’s public float and (B) the Company is using its best efforts to promptly file an amendment to the Registration Statement which would enable the registration of up to thirty percent (30%) of the Company’s public float. Prior to the filing of the Registration Statement, the Company will furnish to each purchaser a copy of the “Selling Shareholder” section of the Registration Statement and to one counsel for the Purchasers (as designated by the Collateral Agent) a copy of the Registration Statement, which documents will be subject to their review. If the Company has not received any comments thereto within three (3) days of delivery, then such documents will be deemed approved by the relevant parties;
(b) 1.1.2 use its commercially reasonable best efforts, subject to receipt of necessary information from each Purchaser, including the Investorsinformation set forth in Schedule 1 attached hereto, to cause the Registration Statement to become be declared effective under the Securities Act as soon promptly as practicable, possible after the filing thereof but in no event later than 150 within 90 days after the Closing Datedate on which the Company files the Registration Statement with the SEC (120 days if the Registration Statement is reviewed by the SEC) (the “Effective Date Deadline”); provided, however, that if the Company is notified by the SEC that the Registration Statement will not be reviewed or is no longer subject to further review and comments, the Effective Date Deadline will be the fifth trading day on the American Stock Exchange following the date on which the Company is so notified subject to any reasonable delay which Issuer and Issuer’s counsel in their sole discretion deem necessary in connection with the disclosure of material nonpublic information;
(c) 1.1.3 use its commercially reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus prospectus, in the form first filed with the Commission pursuant to Rule 424(b) of the Regulations, or filed as part of the Registration Statement at the time of effectiveness if no Rule 424(b) filing is required (the “Prospectus”) used in connection therewith and take all such other actions as may be necessary to keep the Registration Statement current and effective for a period (the “Registration Period”) not exceeding, with respect to the Investor's Shares purchased hereunderPurchasers’ Common Stock, the earlier of (i) the second anniversary of the Closing DateDate (but with respect to Common Stock that is issuable upon exercise of the Warrants, the foregoing date will be the second anniversary of the date the related Warrant was exercised), (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act144 Eligibility Date, or and (iii) such time as all Shares purchased Common Stock held by such Investor in this Offering the Purchasers have been sold (A) pursuant to a registration statement, (B) to or through a broker or dealer or underwriter in a public distribution or a public securities transaction, or (C) in a transaction exempt from the registration and prospectus delivery requirements of the Securities Act under Section 4(1) thereof so that all transfer restrictions and restrictive legends with respect thereto, if any, are removed upon the consummation of such sale;
(d) 1.1.4 promptly furnish to the Investor each Purchaser with respect to the Shares Common Stock registered under the Registration Statement such reasonable number of copies of the Registration StatementProspectus, Prospectuses and Preliminary Prospectuses in conformity with the requirements including any supplements to or amendments of the Securities Act and such other documents as the Investor may reasonably requestProspectus, in order to facilitate the public sale or other disposition of all or any of the Shares Common Stock by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply with the applicable provisions of the Securities Act and of Purchasers;
1.1.5 promptly take such other securities or blue sky laws action as may be applicable in connection with any use of necessary to qualify, or obtain, an exemption for the Common Stock under such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance state securities laws of United States jurisdictions as will be necessary to qualify, or obtain an exemption for, the sale of the Common Stock in states specified in writing by the Investor, provided, however, that Purchasers; but the Company shall will not be required to 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;
(f) 1.1.6 bear all expenses actually incurred in connection with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares Common Stock pursuant to the Registration Statement, regardless of whether a Registration Statement becomes effective, including without limitation: (i) all registration and filing fees and expenses (including filings made with the NASD); (ii) fees and expenses of compliance with federal securities and state “blue sky” or securities laws; (iii) expenses of printing (including printing certificates for the Common Stock and Prospectuses); and (iv) all fees and disbursements of counsel of the Company and independent certified public accountants of the Company; but each Purchaser will be responsible for paying the fees and disbursements for such Purchaser’s respective counsel (with the exception of those reasonable and necessary fees and expenses actually incurred by one counsel for the Purchaser’s in connection with the review of the Registration Statement up to a total of $2,500), the underwriting commissions or brokerage fees, and taxes of any kind (including, without limitation, transfer taxes) applicable to any disposition, sale or transfer of such Purchaser’s Common Stock, and the Company will, in any event, bear its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties); and
(g) 1.1.7 advise the Investors promptly Purchasers, within two (2) business days by e-mail, fax or other type of communication, and, if requested by such person, confirm such advice in writing: (i) after it shall will receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation or threat of any proceeding for that purpose, or any other order issued by any state securities commission or other regulatory authority suspending the qualification or exemption from qualification of such Common Stock under state securities or “blue sky” laws; and the Company it will promptly use its commercially reasonable efforts to prevent the issuance of any stop order or other order or to obtain its withdrawal at the earliest possible moment if such stop order or other order should be issued; and (ii) when the Prospectus or any supplements to or amendments of the Prospectus have been filed, and, with respect to the Registration Statement or any post-effective amendment thereto, when the same has become effective.
1.1.8 In the event of an underwritten offering of Registrable (h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registrationan “Underwritten Offering”), the Company and each participating Purchaser (each a “Participating Holder”), will negotiate in good faith and enter into reasonable and customary agreements (including underwriting agreements in reasonable and customary form, which may include, in the case of an underwritten offering on a firm commitment basis, customary “lock-up” obligations) and take such other actions (including using its best efforts to make such road show presentations (but in no event will the Company be required to incur travel and lodging expenses in excess of $20,000 in connection with all road shows attended by Company management in any twelve month period) and otherwise engage in such reasonable marketing support in connection with any such underwritten offering, including the obligation to make its executive officers available for such purpose if so requested by the managing underwriter for such offering) as are reasonably requested by the managing underwriter in order to expedite or facilitate the sale of such Registrable Shares. The representations, warranties and covenants of the Company in any underwriting agreement which are made to or for the benefit of any underwriters, to the extent applicable, will also be made to and agrees to: for the benefit of the Participating Holders. No Participating Holder will be required to make any representations or warranties in the underwriting agreement except, if applicable, with respect to such Participating Holder’s organization, good standing, authority, title to Registrable Shares, lack of conflict of such sale with such Participating Holder’s material agreements and organizational documents, and, with respect to written information relating to such Participating Holder, that such Participating Holder has furnished in writing expressly for inclusion in such Registration Statement.
1.1.8.1 The Company will make available for inspection by each Participating Holder, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by such Participating Holder or any such underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company and any of its subsidiaries (collectively, the “Records”) as will be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the officers, directors and employees of the Company to supply all information reasonably requested by any such Inspector in connection with such registration.
1.1.8.2 The Company will, in connection with any registration of an Underwritten Offering of Registrable Shares hereunder, use best efforts to furnish to each Participating Holder and to the managing underwriter, if any, a signed counterpart, addressed to such Participating Holder and the managing underwriter, if any, of (a) an opinion or opinions of counsel to the Company and (b) a comfort letter or comfort letters from the Company’s independent public accountants pursuant to Statement on Auditing Standards No. 72 (or any successor thereto), each in customary form and covering such matters of the type customarily covered by opinions or comfort letters, as the case may be, as each such Participating Holder and the managing underwriter, if any, reasonably requests.
1.1.9 In the event the SEC does not permit the Issuer to register all of the shares on the Initial Registration Statement, the Company shall use its best efforts to file subsequent Registration Statements (each, a “Subsequent Registration Statement”) to register the Registrable Shares that were not registered in the Initial Registration Statement as promptly as possible and in a manner permitted by the SEC. For purposes of this Section 1.5, “Filing Date Deadline” means with respect to each Subsequent Registration Statement filed pursuant hereto, the later of (i) make sixty (60) days after the date when 75% of the Registrable Shares that were included in the Initial Registration Statement (or any subsequent Registration Statement) have been sold and keep public information available(ii) six (6) months following the Effective Date of the Initial Registration Statement or any Subsequent Registration Statement, as those terms are understood and defined in Rule 144applicable, until or such earlier date as permitted by the SEC. For purposes of this Section 1.5, “Effective Date Deadline” means with respect to each Subsequent Registration Statement filed pursuant to this Agreement, the earlier of (A) the ninetieth (90th) day following the filing date of such date as all of Registration Statement (or in the Investor's Shares may be resold pursuant to Rule 144(kevent such Registration Statement is reviewed by the SEC, the one hundred twentieth (120th) or any other rule of similar effect day following such filing date) or (B) such the date as all of which is the Investor's Shares shall have been resold; (ii) file with fifth trading day on the SEC in a timely manner all reports and other documents required of American Stock Exchange following the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report date on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated so notified subject to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement any reasonable delay which Issuer and Issuer’s counsel in their sole discretion deem necessary in connection with the SECdisclosure of material nonpublic information.
Appears in 1 contract
Registration Procedures and Expenses. The Except for such times as the Company shall: ------------------------------------may be required to suspend the use of a prospectus forming a part of the Registration Statement, as further described in Section 5(b) hereof, the Company shall use its reasonable best efforts to:
(a) as soon as practicable, but in no event later than five (5) business days following the Subscription Date, prepare and file with the SEC, within 90 days after SEC the Closing Date, a registration statement Registration Statement on Form S-3 (the "Registration Statement"), relating to enable the resale of the Shares by the Investors Purchaser from time to time on a through the automated quotation system of Nasdaq or the facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the InvestorsPurchasers, cause the SEC to cause notify the Company of the SEC's willingness to declare the Registration Statement to become effective as soon as practicable, but in no event later than 150 within ninety (90) days after the Closing DateRegistration Statement is filed by the Company, and notify the Purchasers of such notification from the SEC within three (3) business days of receipt;
(c) use its reasonable best efforts to promptly prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, until the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor Purchaser may sell all Shares then held by the Investor Purchaser without restriction by the volume limitations reason of Rule 144(e144(k) of under the Securities ActAct ("Rule 144") or any other rule of similar effect, or (iii) such time as all Shares purchased by such Investor in this Offering the Purchaser have been sold pursuant to a registration statement;
(d) so long as the Registration Statement is effective covering the resale of Shares owned by the Purchaser, furnish to the Investor Purchaser with respect to the Shares registered under the Registration Statement (and to each underwriter, if any, of such Shares) such reasonable number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act prospectuses and such other documents as the Investor Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, Purchaser; provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses prospectuses to the Investor Purchaser shall be subject to the receipt by the Company of reasonable assurances from the Investor Purchaser that the Investor Purchaser 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 such Prospectuses or Preliminary Prospectusesprospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, Purchaser; provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph paragraphs (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement, other than fees and expenses, if any, of counsel or other advisers to the Purchaser or the Other Purchasers or underwriting discounts, brokerage fees and commissions incurred by the Purchaser or the Other Purchasers, if any; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With with a view to making available to the Investor Purchaser the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor Purchaser to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the InvestorPurchaser's Shares may be resold within a given three-month period pursuant to Rule 144(k) 144 or any other rule of similar effect or (B) such date as all of the InvestorPurchaser's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Exchange Act; and (iii) furnish to the Investor Purchaser upon request, as long as the Investor Purchaser owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the Company's most recent Annual Report annual report on Form form 10-K or Quarterly Report quarterly report of the Company on Form form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor Purchaser of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Registration Procedures and Expenses. The (a) If and whenever the Company shall: ------------------------------------is required pursuant to the provisions of this Section 6 to use its diligent, good faith efforts to effect the registration of any Registration Stock under the Securities Act, the Company will, as expeditiously as possible:
(ai) prepare and file with the SEC, within 90 days after the Closing Date, Commission a registration statement on Form S-3 with respect to such securities and use its diligent, good faith efforts to cause such registration statement to become and remain effective for the period specified in clause (the "Registration Statement"), to enable the resale of the Shares by the Investors from time to time on a national securities exchange or in privately-negotiated transactionsii) below;
(bii) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 days after the Closing Date;
(c) use its reasonable best efforts to prepare and file with the SEC Commission such amendments and supplements to the Registration Statement such registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such registration statement effective, and to comply with the Registration Statement current and effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) provisions of the Securities Act, for a period of not less than 120 days (or such lesser period in which all of the stock covered by such registration statement is in fact sold);
(iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement each selling stockholder and underwriter such number of copies of the Registration Statement, Prospectuses a prospectus and Preliminary Prospectuses preliminary prospectuses in conformity with the requirements of the Securities Act as may be reasonably requested, any other prospectus filed under Rule 424 under the Securities Act and such other documents as the Investor any seller may reasonably request;
(iv) use its diligent, in order good faith efforts to facilitate register or qualify the public sale or other disposition of all or any of the Shares Registration Stock covered by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply with the applicable provisions of the Securities Act and of such registration statement under such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
jurisdictions as each such seller shall reasonably request (e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, however, that the Company shall not be required to qualify to do business or consent to the general service of process for all purposes in any jurisdiction in which where it is not now so qualified then qualified), and do any and all other acts and things which may be reasonably necessary to enable such seller to consummate the public sale or has not so consentedother disposition of such Registration Stock in such jurisdictions;
(fv) bear all expenses in connection with the procedures in paragraph (a) through (e) notify, on a timely basis, each seller of this Section 7.1 and the Registration Stock covered by such registration of the Shares pursuant statement, at any time when a prospectus relating to the Registration StatementStock covered by such registration statement is required to be delivered under the Securities Act within the appropriate period mentioned in clause (a)(ii) of Section 6.6 of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing and, at the request of such seller, prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchaser of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; and
(gvi) advise the Investors promptly after it shall receive notice or obtain knowledge use its best efforts to list such Registration Stock on any securities exchange on which capital stock of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment same class is then listed, if such stop order should be issuedRegistration Stock is not already so listed and if such listing is then permitted under the rules of such exchange.
(hb) With a view The Company will pay all Registration Expenses in connection with each registration pursuant to making available this Section 6. All Selling Expenses in connection with each registration pursuant to this Section 6 shall be borne by the seller or sellers pro-rata in proportion to the Investor the benefits of Rule 144 (securities covered thereby being sold or its successor rule) and any in such other rule or regulation of the SEC that proportion as they may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement agree. All expenses incurred by the Company in complying with Section 6 hereof, including, without limitation, all registration and filing fees (including all expenses incident to filing with the National Association of Securities Dealers, Inc.), printing expenses, reasonable fees and disbursements of counsel for the Company, securities law and blue sky fees and expenses and the expenses of any regular audits incident to or required by any such registration are herein called Registration Expenses, except that all underwriting discounts and selling commissions applicable to the sales, any state or federal transfer taxes payable with respect to the sales, all expenses of any special audits and all fees and disbursements of counsel for the selling shareholders are herein called Selling Expenses.
(c) The Purchaser acknowledges that there may be times when the Company must suspend the use of the prospectus forming a part of either of a registration statement (a "Suspension") until such time as an amendment to a registration statement has been filed by the Company and declared effective by the Commission, or until such time as the Company has filed an appropriate report with the Commission pursuant to the Exchange Act or appropriately supplemented the prospectus forming a part of such registration statement. The Purchaser hereby covenants that it has complied with will not sell any Common Shares pursuant to said prospectus during the reporting requirements period commencing at the time that the Company gives the Purchaser written notice of the Exchange Act, (B) a copy Suspension of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, use of said prospectus and (C) such other information as may be reasonably requested in order to avail ending at the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands time that the Investor disclaims being an underwriter, but Company gives the Investor being deemed an underwriter by Purchaser written notice that the SEC shall not relieve the Company of any obligations it has hereunder, Purchaser may thereafter effect sales pursuant to said prospectus; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECshall be suspended for a total of no more than sixty (60) days during any twelve (12) month period.
Appears in 1 contract
Registration Procedures and Expenses. The Company Enterra shall: ------------------------------------:
(a) prepare subject to receipt of necessary information from C.M.M.G., use its reasonable best efforts to cause to be prepared and file filed with the SEC, within 90 days after SEC as soon as practicable following the Closing Date, a registration statement on Form S-3 SB-2 (the "“Registration Statement"”), to enable the resale of 100% of the Conversion Shares and 100% of the Warrant Shares calculated assuming that all of the funds under the Credit Facility will be advanced and converted, including interest, by C.M.M.G. (collectively, the Investors from time to time on a national securities exchange or in privately-negotiated transactions;
(b) “Registrable Shares”). Enterra shall use its all reasonable best efforts, subject to receipt of necessary information from the Investors, efforts to cause the Registration Statement to become be declared effective as soon promptly as practicablepossible after filing and, but in no event later than 150 days after subject to Section 7.2(b) below, to remain continuously effective until the earlier of (i) the second (2nd) anniversary of the Closing Date, or (ii) such time as all Registrable Shares converted or exercised, as applicable, by C.M.M.G. pursuant to this Agreement have been sold thereunder or pursuant to Rule 144 under the Securities Act (the “Registration Period”). In the event that Form SB-2 is unavailable for such registration, Enterra shall use such other form as is available for such a registration;
(cb) use its reasonable best efforts to prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceedingat all times until the end of the Registration Period, subject to Section 7.2(b) below;
(c) furnish to C.M.M.G. with respect to the Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Registrable Shares registered under the Registration Statement such reasonable number of copies of the Registration Statement, Prospectuses prospectuses and Preliminary Prospectuses preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor C.M.M.G. may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary ProspectusesC.M.M.G.;
(ed) file documents required of the Company Enterra for normal blue sky clearance in states specified in writing by the Investor, C.M.M.G.; provided, however, that the Company Enterra shall not be required to 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;
(e) as soon as practicable following the order by the SEC that a Registration Statement covering the Registrable Shares is effective, Enterra shall deliver, or shall cause its legal counsel to deliver, to the transfer agent for such Registrable Shares (with copies to C.M.M.G.) confirmation that such Registration Statement has been declared effective by the SEC;
(f) bear all expenses in connection with the procedures in paragraph (a) through (ef) of this Section 7.1 and the registration of the Registrable Shares pursuant to the Registration StatementStatement except for the fees and expenses, if any, of legal counsel or advisers to C.M.M.G. or underwriting discounts, brokerage fees and commissions incurred by C.M.M.G., if any; and
(g) advise the Investors promptly not, for a period of thirty (30) days after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement Statement, authorize or issue any shares of the initiation of its capital stock to any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order person or to obtain its withdrawal at the earliest possible moment if such stop order should entity except as may be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registrationrequired by this Agreement, the Company covenants and agrees to: (i) make and keep public information available, as those terms Exchange Agreement or any securities that are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold issued pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of a safe harbour from the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports registration and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting prospectus requirements of the Exchange Securities Act or to a non-U.S. person pursuant to Regulation S under the Securities Act. It shall be a condition precedent to the obligations of Enterra to take any action pursuant to this Section 7.1 that C.M.M.G. shall furnish to Enterra such information regarding itself, (B) a copy the Registrable Shares to be sold by C.M.M.G., and the intended method of disposition of such securities as shall be required to effect the registration of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECRegistrable Shares.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) as soon as reasonably practicable, but in no event later than fifteen (15) business days following the Closing Date (the "FILING DATE"), subject to timely receipt of necessary information in writing from the Purchasers, prepare and file with the SEC, within 90 days after the Closing Date, Commission a registration statement Registration Statement on Form S-3 (relating to the "Registration Statement"), to enable the resale sale of the Registrable Shares by the Investors Purchaser and the Other Purchasers from time to time on a the Nasdaq National Market System or the facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactionstransactions (the "REGISTRATION STATEMENT"). If Form S-3 is not available at that time, then the Company will file a registration statement or such form as is then available to effect a registration of the Registrable Shares, subject to the consent of the Purchasers, representing a majority of the Registrable Shares, which consent shall not be unreasonably withheld;
(b) use its reasonable best efforts, to cause the Commission to declare the Registration Statement effective as soon as practicable but in no event later than sixty (60) calendar days after the Closing Date (the "REQUIRED EFFECTIVE DATE"), subject to timely receipt of necessary information in writing from the InvestorsPurchasers. However, so long as the Company filed the Registration Statement by the Filing Date, if the Registration Statement receives Commission review, then the Required Effective Date will be the ninetieth (90th) calendar day after the Closing Date. The Company's best efforts will include, but not be limited to, promptly responding to all comments received from the staff of the Commission. If the Company receives notification from the Commission that the Registration Statement will receive no action or review from the Commission, then the Company will, subject to its rights under Section 7.2, use its commercially reasonably efforts to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 within five (5) business days after the Closing Datesuch Commission notification;
(c) use its reasonable best efforts to promptly prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to until the Investor's Shares purchased hereunder, the earlier earliest of (i) two years after the second anniversary effective date of the Closing DateRegistration Statement, (ii) the date on which the Investor Purchasers may sell all of the Registrable Shares then held by the Investor Purchasers, without restriction by the volume limitations of registration, pursuant to Rule 144(e144(k) of the Securities Act, Act or (iii) such time as all Registrable Shares purchased by such Investor all Purchasers in this the Offering have been sold pursuant to a registration statementRegistration Statement or Rule 144 of the Securities Act;
(d) furnish to the Investor Purchaser with respect to the Registrable Shares registered under the Registration Statement (and to each underwriter, if any, of such Registrable Shares) such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act prospectuses and such other documents as the Investor Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary ProspectusesPurchaser;
(e) file documents required of the Company for normal blue sky Blue Sky clearance in states specified in writing by the Investor, Purchaser; provided, however, that the Company shall not be required to (i) qualify to do business or in any jurisdiction where it would not otherwise be required to qualify but for this Section 7.1; (ii) file a general consent to service of process in any jurisdiction such jurisdiction; or (iii) subject itself to taxation in which it is not now so qualified or has not so consented;any such jurisdiction; and
(f) bear all expenses in connection with the procedures in paragraph paragraphs (a) through (e) of this Section 7.1 and the registration of the Registrable Shares pursuant to the Registration Statement; and
(g) advise , other than fees and expenses, if any, of counsel or other advisers to the Investors promptly after Purchaser or the Other Purchasers or underwriting discounts, brokerage fees and commissions incurred by the Purchaser or the Other Purchasers, if any. Notwithstanding the foregoing, it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available condition precedent to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required obligations of the Company under to take any action pursuant to paragraphs (a) through (f) of this Section 7.1, that the Exchange Act; and (iii) Purchaser shall furnish to the Investor upon requestCompany such information regarding itself, the Registrable Shares to be sold by the Purchaser, and the intended method of disposition of such Registrable Shares as long as shall be required to effect the Investor owns any registration of the Registrable Shares, (A) a written statement by all of which information shall be furnished to the Company that it has complied with in writing specifically for use in the reporting requirements of the Exchange Act, (B) a copy of Registration Statement. The Purchaser shall update such information as and when necessary by written notice to the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor Purchaser disclaims being an underwriter, but the Investor Purchaser being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder. Notwithstanding the foregoing, provided, however, the parties understand and agree that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is shall not be obligated to submit retain an acceleration request underwriter with respect to the SEC shall be extended offer and sale of Registrable Shares pursuant to the earlier Registration Statement. The Company shall promptly notify the Purchaser of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing effectiveness of the Registration Statement Statement, and any post-effective amendments thereto, as well as of the receipt by the Company of any stop orders of the Commission with respect to the SECRegistration Statement.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) The Company shall:
(i) subject to receipt of necessary information from the Investors, prepare and file with the SEC, within 90 as soon as practicable, but in no event later than thirty (30) days after the Closing Date, a registration statement on Form S-3 (or in the event that the Company is unable to use Form S-3, then on Form S-1) (the "Registration Statement"), ) to enable the resale of the Shares by the Investors from time to time on a national securities exchange through the automated quotation system of the Nasdaq Stock Market or in privately-negotiated transactions;
(bii) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 ninety (90) days after the Closing DateRegistration Statement is filed by the Company;
(ciii) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to the each Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, Act or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(div) furnish to the Placement Agent and to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary Prospectuses;
(ev) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, however, that the Company shall not be required to 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;
(fvi) bear all expenses in connection with the procedures in paragraph (ai) through (ev) of this Section 7.1 7.1(a) and the registration of the Shares pursuant to the Registration Statement; and
(gvii) advise the Investors Investors, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company it will promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(hb) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. .
(c) It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 7.1 that the Investor shall furnish to the Company such information regarding itself, the Shares to be sold by Investor, and the intended method of disposition of such securities as shall be required to effect the registration of the Shares.
(d) The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 120 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------
(a) prepare and Except for such times as the Company may be required, under the terms hereof, to suspend the use of a prospectus forming a part of the Registration Statement, the Company will:
(i) as soon as reasonably practicable, but in no event later than thirty (30) days following the first date the Company becomes current in its reporting requirements under the Exchange Act (the “Compliance Date”), the Company will file with the SEC, within 90 days after the Closing Date, a registration statement on Form S-3 (S-1, for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the "Registration Statement")Securities Act, to enable registering the resale of the Shares Registrable Securities by the Investors from time to time on a national securities exchange or in privately-negotiated transactions;
(b) Holders thereof. The Company shall use its commercially reasonable best efforts, subject to receipt of necessary information from the InvestorsHolders of the Registrable Securities, to cause the SEC to declare such Registration Statement effective within (1) ninety (90) days after the filing of such Registration Statement if there is no review of the Registration Statement by the SEC or (2) one hundred twenty (120) days after the filing of such Registration Statement if there is a review of the Registration Statement by the SEC. The Company will file a post-effective amendment to such Registration Statement on Form S-1 to convert such Registration Statement to become effective as soon as practicable, but in no event later than 150 Form S-3 (or any successor form to Form S-3) within thirty (30) days after the Closing DateCompany becomes eligible to register the Registrable Securities on Form S-3 (or any successor form to Form S-3) for resale by the Holders thereof;
(cii) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus prospectus used in connection therewith (A) as may be necessary to keep the Registration Statement current and continuously effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, until the earlier of (i) the second anniversary of the Closing Dateeffective date of the Registration Statement, (ii) the date on which the Investor may sell such time as all Shares then Registrable Securities held by the Investor without restriction by Holders have been sold pursuant to the volume limitations of Rule 144(e) of the Securities ActRegistration Statement, or (iii) such time as all Shares purchased Registrable Securities held by such Investor in this Offering have been sold the Holders are eligible for sale by the Holders pursuant to Rule 144(k) after the Compliance Date, and (B) as may be reasonably requested by a registration statementHolder in order to incorporate information concerning such Holder or such Holder’s intended method of distribution;
(diii) so long as the Registration Statement is effective covering the resale of Registrable Securities owned by the Holders, furnish to the Investor each Holder with respect to the Shares Registrable Securities registered under the Registration Statement such reasonable number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act prospectuses and such other documents as the Investor such Holder may reasonably request, request in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.order
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------is obligated to do the following:
(a) i. Within two weeks of the First Closing Date, the Company shall prepare and file with the SECCommission one or more registration statements in order to register with the Commission the sale by the Purchasers, within 90 days after from time to time, of the Shares issued in the First Closing Date, for sale pursuant to such registration statements (a registration statement on Form S-3 (the "Registration Statement"), to enable the resale of the Shares by the Investors from time to time on a national securities exchange or in privately-negotiated transactions;
(b) . The Company shall use its reasonable best efforts, subject to receipt of necessary information from the Investors, efforts to cause the such Registration Statement to become effective as soon as practicablepracticable thereafter. Promptly after filing any such Registration Statement, but in no event later than 150 days after the Company will furnish to the Purchasers a copy of such Registration Statement.
ii. Within two weeks of the Second Closing Date;
, the Company shall prepare and file with the Commission one or more registration statements in order to register with the Commission the sale by the Purchasers, from time to time, of the Shares issued in the Second Closing for sale pursuant to such registration statements (c) a "Registration Statement"). The Company shall use its best efforts to cause such Registration Statement to become effective as soon as practicable thereafter. Promptly after filing any such Registration Statement, the Company will furnish to the Purchasers a copy of such Registration Statement.
iii. Within two weeks of the Third Closing Date, the Company shall prepare and file with the Commission one or more registration statements in order to register with the Commission the sale by the Purchasers, from time to time, of the Shares issued in the Third Closing for sale pursuant to such registration statements (a "Registration Statement"). The Company shall use its best efforts to cause such Registration Statement to become effective as soon as practicable thereafter. Promptly after filing any such Registration Statement, the Company will furnish to the Purchasers a copy of such Registration Statement.
iv. The Company shall use reasonable best efforts to prepare and file with the SEC Commission (i) such amendments and supplements to the each such Registration Statement and the Prospectus prospectus used in connection therewith therewith, (ii) such SEC Reports and (iii) such other filings required by the Commission, as may be necessary to keep the each Registration Statement current and continuously effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, the earlier of (i) until the second anniversary of the Third Closing Date; provided, however, that in the event of a Suspension Period (iias defined below) or a Stand-Off Period (as defined in Section 10.6 hereof), the date on which Company shall extend the Investor may sell all Shares then held period of effectiveness of such Registration Statement by the Investor without restriction by the volume limitations aggregate number of Rule 144(e) days of the Securities Acteach such Suspension Period or Stand-Off Period. The Company may suspend use of a prospectus when it deems necessary, or (iii) in its reasonable judgment, until such time as all the Company subsequently authorizes use of such prospectus (each such period, including any time period during which a stop order issued by the Commission is in effect with respect to such prospectus or related Registration Statement, a "Suspension Period"). Upon the declaration of a Suspension Period, the Company shall use reasonable best efforts to end the Suspension Period as quickly as possible. Notwithstanding the foregoing, the Company shall not allow a Suspension Period to continue for more than 60 days unless the Company shall deliver to the Purchasers a second notice, which shall have the effect of extending the Suspension Period by up to an additional 30 days. In no event shall the Company extend a Suspension Period beyond such 90 day period. The Company shall not under any circumstances be entitled to exercise its rights under this subparagraph to effect a Suspension Period more than two times in any 12 month period. Each Purchaser agrees that such Purchaser will not sell any Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to prospectus beginning at the Investor with respect to time the Shares registered under the Registration Statement Company gives such number of copies Purchaser notice of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements suspension of the Securities Act prospectus and ending at the time the Company gives such other documents as Purchaser notice of the Investor may reasonably request, in termination of the Suspension Period. Each Purchaser further agrees to promptly notify the Company of the sale of all of such Purchaser's Shares.
v. In order to facilitate the public sale or other disposition of all or any of the Shares by the Investoreach Purchaser, provided, however, that the obligation of the Company shall furnish to deliver each Purchaser with respect to the Shares registered under the Registration Statement such number of copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply prospectuses and preliminary prospectuses as such Purchaser reasonably requests in conformity with the applicable provisions requirements of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;Act.
(e) vi. The Company shall file documents required of the Company for normal blue sky clearance in states specified in writing by the Investoreach Purchaser; PROVIDED, provided, howeverHOWEVER, that the Company shall not be required to 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;.
(f) vii. Other than fees and expenses, if any, of counsel or other advisers to the Purchasers, which fees and expenses shall be borne by the Purchasers except as provided in the next sentence and under Section 13.8 below, the Company shall bear all expenses (exclusive of underwriting discounts and commissions) in connection with the procedures in paragraph paragraphs (a) through (e) of this Section 7.1 10.
1. The Company shall bear the expenses of reasonable fees and disbursements of a single special counsel for the registration of the Shares Purchasers (including any purchasers pursuant to the Registration Statement; and
(gCommon Stock and Warrant Purchase Agreement of even date herewith described in Section 13.9 hereof) advise the Investors promptly after it shall receive notice or obtain knowledge reasonably acceptable to each of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Purchasers in connection with each Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts required to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold filed pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish this Section 10 not to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECexceed $15,000.
Appears in 1 contract
Registration Procedures and Expenses. The If and whenever the ------------------------------------ Company shall: ------------------------------------is required by the provisions of Sections 2, 3 and 4 to use its best efforts to effect the registration of any of the Restricted Stock under the Securities Act, the Company will, as expeditiously as possible:
(a) prepare (and afford counsel for the selling holders reasonable opportunity to review and comment thereon) and file with the SEC, within 90 days after the Closing Date, Commission a registration statement (which, in the case of an underwritten public offering pursuant to Section 2 hereof, shall be on Form S-3 (a form of general applicability satisfactory to the "Registration Statement"), managing underwriter selected as therein provided) with respect to enable such securities and use its best efforts to cause such registration statement to become and remain effective for the resale period of the Shares by the Investors from time to time on a national securities exchange or in privately-negotiated transactionsdistribution contemplated thereby (deter mined as herein after provided);
(b) use its prepare (and afford counsel for the selling holders reasonable best efforts, subject opportunity to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 days after the Closing Date;
(creview and comment thereon) use its reasonable best efforts to prepare and file with the SEC Commission such amendments and supplements to the Registration Statement such registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the Registration Statement current and such registration statement effective for a the period not exceeding, specified in paragraph (a) above and as comply with the provisions of the Securities Act with respect to the Investor's Shares purchased hereunder, the earlier disposition of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased Restricted Stock covered by such Investor registration statement in this Offering have been sold pursuant to a accordance with the sellers' intended method of disposition set forth in such registration statementstatement for such period;
(dc) furnish to the Investor with respect each seller and to the Shares registered under the Registration Statement each underwriter such number of copies of the Registration Statement, Prospectuses registration statement and Preliminary Prospectuses in conformity with the requirements of the Securities Act and prospectus included therein (including each preliminary prospectus) as such other documents as the Investor persons may reasonably request, request in order to facilitate the public sale or other disposition of the Restricted Stock covered by such registration statement;
(d) use its best efforts to register or qualify the Restricted Stock covered by such registration statement under the securities or blue sky laws of such jurisdictions as the sellers of Restricted Stock or, in the case of an underwritten public offering, the managing underwriter, shall reasonably request (provided that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service of process in any jurisdiction);
(e) immediately notify each seller under such registration statement and each underwriter, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus contained in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(f) use its best efforts (if the offering is underwritten) to furnish, at the request of any underwriter, on the date that Restricted Stock is delivered to the underwriters for sale pursuant to such registration: (i) an opinion dated such date of counsel representing the Company for the purposes of such registration, addressed to the underwriters, stating that such registration statement has become effective under the Securities Act and that (A) to the best knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (B) the registration statement, the related prospectus, and each amendment or supplement thereof, comply as to form in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder (except that such counsel need express no opinion as to financial statements, the notes thereto, and the financial schedules and other financial and statistical data contained therein) and (C) to such other effects as may reasonably be requested by counsel for the underwriters or by such seller or its counsel, and (ii) a letter dated such date from the independent public accountants retained by the Company, addressed to the underwriters, stating that they are independent public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the financial statements of the Company included in the registration statement or the prospectus, or any amendment or supplement thereof, comply as to form in all material respects with the applicable accounting requirements of the Shares Securities Act, and such letter shall additionally cover such other financial matters (including information as to the period ending no more than five business days prior to the date of such letter) with respect to the registration in respect of which such letter is being given as such underwriters or seller may reasonably request; and
(g) during normal business hours and with reasonable notice, make available for inspection by each seller, any underwriter participating in any distribution pursuant to such registration statement, and any attorney, accountant or other agent retained by such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the InvestorCompany, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement and permit such seller, attorney, accountant or agent to participate in the preparation of such registration statement. For purposes of paragraphs (a) and (b) above, the period of distribution of Restricted Stock in a firm commitment underwritten public offering shall be deemed to extend until each underwriter has completed the distribution of all securities purchased by it, and the period of distribution of Restricted Stock in any other registration shall be deemed to extend until the earlier of the sale of all Restricted Stock covered thereby or six months after the effective date thereof. In connection with each registration hereunder, the selling holders of Restricted Stock will furnish to the Company in writing such information with respect to themselves and the proposed distribution by them as shall be reasonably necessary in order to assure compliance with federal and applicable state securities laws. In connection with each registration pursuant to Sections 2, 3 and 4 hereof covering an underwritten public offering, the Company agrees to enter into a written agreement with the managing underwriter selected in the manner herein provided in such form and containing such provisions as are customary in the securities business for such an arrangement between major underwriters and companies of the Company's size and investment stature, provided, however, that the obligation of -------- ------- such agreement shall not contain any such provision applicable to the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply which is inconsistent with the applicable provisions of the Securities Act hereof and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investorprovided, providedfurther, however, -------- ------- ------- that the time and place of the closing under said agreement shall be as mutually agreed upon among the Company and such managing underwriter. Notwithstanding anything to the contrary contained herein, the Company shall not be required to qualify to do business or consent to service include any class of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC securities in a timely manner all reports and registration statement other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECthan Common Stock.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) use its best efforts, but in no event later than 60 days following the date of Closing, to prepare and file file, with the SECCommission a Registration Statement under the Securities Act following the date of Closing, within 90 days after the Closing Date, a registration statement on Form S-3 (the "Registration Statement"), to enable the resale of the Shares by the Investors from time to time on a national securities exchange or in privately-negotiated transactions;
(b) and use its reasonable best efforts, subject to receipt of necessary information from the Investors, efforts to cause the Registration Statement to become effective as soon as practicablepracticable thereafter, but relating to the resale pursuant to Rule 415 under the Securities Act of the Registrable Stock by the Holders from time to time through the automated quotation system of Nasdaq or the facilities of any national securities exchange on which the Common Shares are then traded or in no event later than 150 privately-negotiated transactions, and otherwise as described in the "Plan of Distribution" section of the Company's Form F-3 Registration Statement filed on July 22, 2003; o
(b) Each time the Company shall determine to file a Registration Statement in connection with the proposed offer and sale for money of any of its securities by it or any of its security holders, the Company will give written notice of its determination to all Holders. Upon the written request of a Holder given within twenty (20) days after the Closing Date;giving of any such notice by the Company, the Company will use its best efforts to cause all such shares of Registrable Stock, the Holders of which have so requested registration thereof, to be included in such Registration Statement, all to the extent requisite to permit the sale or other disposition by the prospective seller or sellers of the Registrable Stock to be so registered. If the Registration Statement is to cover an underwritten distribution, the Company shall use its best efforts to cause the Registrable Stock requested for inclusion pursuant to this paragraph to be included in the underwriting on the same terms and conditions as the securities otherwise being sold through the underwriters. If, in the good faith judgment of the managing underwriter of such public offering, the inclusion of any or all of the Registrable Stock requested for inclusion pursuant to this paragraph and other securities would interfere with the successful marketing of a smaller number of shares to be offered, then the number of shares of Registrable Stock and other securities to be included in the offering (except for shares to be issued by the Company in an offering initiated by the Company) shall be reduced accordingly on a prorata basis with the other security holders.
(c) use its reasonable best efforts promptly and in good faith respond to all Commission's comments on the Registration Statement, and within two (2) business days of receipt of an indication from the Commission that it has no further comments, request acceleration of the effectiveness of the registration at the earliest practicable time;
(d) prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, until the earlier of (i) the second third anniversary of the Closing Date, (ii) the date following exercise of the Warrants on which the Investor Holder may sell all the Shares then held by the Investor without restriction by the volume limitations of Holder within a three-month period in accordance with Rule 144(e) of 144 under the Securities ActAct ("Rule 144"), or (iii) such time as all Shares the Registrable Stock purchased by such Investor in this Offering the Holder have been sold pursuant to a registration statement;
(de) so long as the Registration Statement is effective covering the resale of the Registrable Stock owned by the Holders, furnish to the Investor with respect to the Shares registered under the Registration Statement Holder such reasonable number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act prospectuses and such other documents as the Investor Holders may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary ProspectusesRegistrable Stock;
(ef) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, Purchaser; provided, however, that the Company shall not be required to 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;
(fg) bear all expenses in connection with the procedures in paragraph paragraphs (a) through (ef) of this Section 7.1 7.2 and the registration of the Shares and Warrant Shares pursuant to the Registration Statement, except for any underwriting discounts, brokerage fees and commissions incurred by the Purchaser, if any; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With with a view to making available to the Investor Purchaser the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC Commission that may at any time permit the Investor Purchaser to sell the Shares and Warrant Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the InvestorPurchaser's Shares and Warrant Shares may be resold within a given three-month period pursuant to Rule 144(k) 144 or any other rule of similar effect or (B) such date as all of the InvestorPurchaser's Shares and Warrant Shares shall have been resold; resold and (ii) file with the SEC Commission in a timely manner all reports and other documents required of the Company under the Exchange Act; Securities Act and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of under the Exchange Act.
(i) notify the Holders participating in such registration, (B) a copy promptly after it shall receive notice thereof, of the Company's most recent Annual Report on Form 10date and time when such Registration Statement and each post-K effective amendment thereto has become effective or Quarterly Report on Form 10-Qa supplement to any prospectus forming a part of such Registration Statement has been filed;
(j) notify the Holders participating in such registration promptly of any request by the Commission or any state securities commission or agency for the amending or supplementing of such Registration Statement or prospectus or for additional information;
(k) prepare and promptly file with the Commission, and (C) promptly notify such other information participating Holders of the filing of, such amendments or supplements to such Registration Statement or prospectus as may be reasonably requested necessary to correct any statements or omissions if, at the time when a prospectus relating to such securities is required to be delivered under the Securities Act, any event has occurred as the result of which any such prospectus or any other prospectus as then in order effect would include an untrue statement of a material fact or omit to avail state any material fact required to be stated therein or necessary to make the Investor statements therein not misleading;
(l) advise such participating Holders, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any rule stop order by the Commission or regulation any state securities commission or agency suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for that purpose and promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
(m) cooperate with the Holders to facilitate the timely preparation and delivery (under normal way settlement procedures) of certificates representing securities to be sold pursuant to any Registration Statement free of any restrictive legends and in such denominations and registered in such names as Holders may request prior to sales of securities pursuant to such Registration Statement;
(n) comply with all applicable rules and regulations of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC Commission and shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days make generally available as soon as practicable after the initial filing effective date of the applicable Registration Statement an earnings statement satisfying the provisions of Section 11(a) of the Securities Act;
(o) permit the Purchaser to assign the rights under this Section 7 to any other person in connection with a transfer of the SECRegistrable Stock.
Appears in 1 contract
Registration Procedures and Expenses. The Company shallis obligated to do the following: ------------------------------------The Company shall (subject to the Company's eligibility to use a Form S-3 Registration Statement which the Company believes it will be eligible to use),
(a) within 120 days following the Initial Closing , use its best efforts to prepare and file with the SECCommission a Registration Statement on Form S-3 (provided that at such time the Company is eligible to use S-3 and, within 90 days after if not, use its best efforts to prepare and file with the Closing DateCommission a Registration Statement on Form S-3 at such later date as the Company is so eligible) in order to register with the Commission under the Securities Act a sale by the Holders in accordance with the method or methods of distribution thereof as reasonably specified by the Holders on a delayed or continuous basis pursuant to Rule 415 under the Securities Act all of the Registrable Shares (notwithstanding anything to the contrary expressed or implied herein, if a registration statement on Form S-3 (any substitute form becomes available for registration of the Registrable Shares, the Company may in its sole discretion instead prepare and file with the Commission a registration statement on such substitute form at any time in order to register the Registrable Shares under the Securities Act and such registration statement will be a "Registration Statement"" for the purposes of this Agreement), to enable the resale of the Shares by the Investors from time to time on a national securities exchange or in privately-negotiated transactions;
(b) use its reasonable best effortsefforts after such filing, subject to receipt of necessary information from the InvestorsHolders, to cause the such Registration Statement to become effective as soon as practicable, but in no event later than 150 days after the Closing Datereasonably practicable thereafter;
(c) use its reasonable best efforts promptly notify each Holder, at any time when a prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in or relating to such Registration Statement contains an Untrue Statement;
(d) promptly prepare and file with the SEC Commission, and deliver to each Holder, such amendments and supplements to the such Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the such Registration Statement current effective and effective for a period not exceeding, to comply with the provisions of the Securities Act with respect to the Investor's sale or other disposition of all Registrable Shares purchased hereunder, the earlier until termination of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time obligation as all Shares purchased by such Investor provided in this Offering have been sold pursuant to a registration statementSection 2.6 below;
(de) furnish to the Investor with respect to the Shares registered under the Registration Statement each Purchaser such number of copies of the Registration Statementprospectuses, Prospectuses and Preliminary Prospectuses including preliminary prospectuses, in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably requestAct, in order to facilitate the public sale or other disposition of all or any of the Registrable Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply with the applicable provisions of the Securities Act and of Holders;
(f) file such other securities or blue sky laws documents as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky securities law clearance for the resale of the Registrable Shares in states specified in writing any state reasonably requested by the Investor, Holders provided, however, that the Company shall not be required in connection with this paragraph (f) to (i) qualify as a foreign corporation to do business under the laws of any jurisdiction in which it shall not then be qualified or execute a general consent to service of process in any jurisdiction or (ii) undertake any filing obligations in which it is those states where the Company does not now so qualified or has not so consentedcurrently meet such filing requirements;
(fg) use its best efforts to cause all Registrable Shares to be listed on each securities exchange, quotation system, market or over-the-counter bulletin board, if any, on which equity securities by the Company are then listed or traded;
(h) bear all expenses in connection with this Agreement, including, without limitation, all registration and filing fees (including all expenses incident to filing with the procedures in paragraph NASD), printing expenses, fees and disbursements of counsel for company, expenses of any special audits incident to or required by any such registration and expenses of complying with the securities or blue sky laws of any jurisdiction, other than (ai) through (e) fees and expenses, if any, of this Section 7.1 and the registration of the Shares pursuant counsel or other advisors to the Registration StatementHolders and (ii) brokers commissions, discounts or fees and transfer taxes; and
(gi) advise take all reasonable actions required to prevent the Investors promptly after it shall receive notice or obtain knowledge of the issuance entry of any stop order issued or threatened by the SEC delaying Commission or suspending the effectiveness of the any state regulatory authority with respect to any Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any covering Registrable Shares, (A) a written statement by the Company that and take all reasonable actions to remove it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECentered.
Appears in 1 contract
Registration Procedures and Expenses. (i) The Company shall: ------------------------------------:
(aA) as soon as practicable, but in no event later than thirty (30) days following the Closing Date (the “Filing Deadline”), prepare and file with the SEC, within 90 days after the Closing Date, Commission a registration statement on Form S-3 F-3 (or, if the "Registration Statement"Company is not then eligible to register the Registrable Securities for resale on Form F-3, on another appropriate form in accordance with the Securities Act and the Exchange Act), to enable the resale of the Shares Registrable Securities by the Investors from time Buyer in an offering to time be made on a national securities exchange or continuous basis pursuant to Rule 415 under the Securities Act (such registration statement being referred to herein as the “Initial Registration Statement” and each registration statement required to be filed under this Section 8 being referred to herein as a “Registration Statement”); provided, however, that the Buyer shall not be named as an “underwriter” in privately-negotiated transactionsthe Registration Statement without the Buyer’s prior written consent;
(bB) use its reasonable best efforts, subject to receipt of necessary information from the InvestorsBuyer, to cause the SEC to declare the Initial Registration Statement to become effective as soon promptly as practicable, but in any event no event later than 150 days the earlier of (I) the fifth (5th) day after the Company receives notice from the SEC that such Registration Statement will not become subject to review, or (II) the ninetieth (90th) day after the filing thereof or if later the one hundred and twentieth (120th) day after the Closing DateDate (as applicable, the “Effective Deadline”);
(cC) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the a Registration Statement and the Prospectus in compliance with applicable laws, any prospectus used in connection therewith (each, a “Prospectus”) and any document incorporated by reference therein as may be necessary to keep such Registration Statement current, effective and free from any material misstatement or omission to state a material fact until the earliest of (I) twelve months after the effective date of the Registration Statement current and effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iiiII) such time as all Shares purchased by such Investor in this Offering have been sold Offered ADSs and all Warrant ADSs issuable pursuant to a registration statementthe Warrant and, in each case, covered by the Registration Statement, may be sold without volume limitations pursuant to Rule 144 (the “Effectiveness Period”);
(dD) furnish to the Investor Buyer with respect to the Shares Registrable Securities registered under the Registration Statement (and to each underwriter, if any, of such Registrable Securities) such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor Buyer (or underwriter, as applicable) may reasonably request, request in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary ProspectusesRegistrable Securities;
(eE) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, Buyer and use its commercially reasonable efforts to maintain such blue sky qualifications during the Effectiveness Period; provided, however, that the Company shall not be required to 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 consentedconsented or subject the Company to any material tax (excluding, for the avoidance of doubt, any filing fees required in connection with such filing) in any such jurisdiction where it is not then so subject;
(fF) bear all expenses immediately notify the Buyer, at any time prior to the end of the Effectiveness Period, upon discovery that, or upon the happening of any event as a result of which, the Registration Statement 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 connection light of the circumstances then existing, and promptly prepare, file with the procedures SEC and furnish to such holder an amendment of such Registration Statement as may be necessary so that such Registration Statement shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in paragraph (a) through (e) of this Section 7.1 and the registration light of the Shares pursuant to the Registration Statement; andcircumstances then existing;
(gG) advise the Investors Buyer, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the a Registration Statement or of the initiation or threat of any proceeding for that purpose; and the Company will and, subject to Section 8(a)(iii), promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.;
(hH) With a view to making available bear all expenses in connection with the procedures in clauses (A) through (G) of this Section 8(a)(i), the procedures in Section 8(a)(iv) and the registration of the Registrable Securities pursuant to the Investor Registration Statement, including any expenses incurred with respect to the benefits duties of Rule 144 the Depositary pursuant to this Agreement (other than underwriting discounts or its successor rule) commissions, brokers’ fees and similar selling expenses and any other rule fees or regulation of expenses incurred by the SEC that may at Buyer, including attorneys’ fees);
(I) promptly following the date on which any time permit Registration Statement is declared effective by the Investor to sell Shares to the public without registrationSEC, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in accordance with Rule 424 under the Securities Act, if required thereunder, the final prospectus to be used in connection with sales pursuant to such Registration Statement; and
(J) at least two (2) Business Days prior to the filing of each Registration Statement, provide a timely manner “Plan of Distribution” and “Selling Stockholders” section of such Registration Statement to the Buyer for the Buyer’s review and comment which, at a minimum, states that the selling stockholders may transfer the shares of common stock in various circumstances, including circumstances in which the transferees, pledgees or other successors in interest may be the selling beneficial owners for purposes of the Prospectus, and make all reports changes and other documents required modifications thereto reasonably requested by the Buyer.
(ii) Notwithstanding anything to the contrary herein, from the date hereof until the effective date of one or more Registration Statements covering all of the Registrable Securities, the Company shall not, without the prior written consent of the Buyer, prepare and file with the SEC a registration statement (or prospectus filed pursuant to an effective “shelf” registration statement) relating to an offering for its own account or the account of others under the Securities Act of any of its equity securities; provided however that, subject to the restrictions contained herein, the Registration Statement covering the Registrable Securities may be a “universal” shelf registration statement covering additional securities of the Company and the Registration Statement may also register for resale by the holders thereof Ordinary Shares representing up to 631,580 ADSs and up to 252,632 Warrant ADSs in connection with the sale of up to 631,580 Units.
(iii) Notwithstanding anything to the contrary herein, if the SEC takes the position that the offering of some or all of the Registrable Securities in the Initial Registration Statement (and/or any other securities registered therein) is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 as a result of a characterization by the SEC of the transaction described by the Initial Registration Statement as a primary offering by the Company, the Company shall use its reasonable best efforts to persuade the SEC that the offering contemplated by the Initial Registration Statement is a valid secondary offering and not an offering “by or on behalf of the issuer” as defined in Rule 415. In the event that, despite the Company’s reasonable best efforts and compliance with the terms of this Section 8(a)(iii), the SEC refuses to alter its position, the Company shall remove from the Initial Registration Statement such portion of the Registrable Securities and/or other securities registered therein (the “Cut Back ADSs”) as the SEC may require to assure the Company’s compliance with the requirements of Rule 415; provided, however, that the Company shall have no liability to the Buyer pursuant to Section 8(c) or otherwise as a result of the failure to register any Registrable Securities as a result of the SEC’s application of Rule 415 despite the Company’s reasonable best efforts to persuade the SEC that the offering contemplated by the Registration Statement is a valid secondary offering and not an offering “by or on behalf of the issuer” as defined in Rule 415. As soon as practicable following such intervening period of time as shall be required by the SEC or SEC guidance prior to the filing thereof, the Company shall file one or more additional registration statements covering the resale of as many Cut Back ADSs allowed by the SEC or SEC guidance to be so registered while maintaining the Company’s compliance with Rule 415 (each, an “Additional Registration Statement”). The Company shall use its commercially reasonable efforts to file each Additional Registration Statement on or prior to the twentieth (20th) day after such day that represents the first opportunity that the SEC allows the Additional Registration Statement to be filed without the offering of the shares registered thereunder being deemed a primary offering (the “Additional Registration Statement Filing Eligibility Day”) and cause each Additional Registration Statement to be declared effective no later than, as applicable (a) five (5) days after the Company receives notice from the SEC that the Additional Registration Statement will not become subject to review or (b) if the Additional Registration Statement becomes subject to review by the SEC, ninety (90) days after the filing thereof. With regard to any such Additional Registration Statement, all of the provisions of this Section 8(a)(iii) shall again be applicable to the Cut Back Shares. The Company shall give the Buyer prompt notice of the amount of Shares excluded from each Additional Registration Statement. Each Registration Statement shall be on Form F-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form F-3, in which case such registration shall be on another appropriate form in accordance with the Securities Act and the Exchange Act; and ).
(iiiiv) furnish Within two (2) Business Days of the effective date of any Registration Statement, the Company shall give notice to the Investor Buyer of such effectiveness and cause its counsel to issue an appropriate opinion or opinions to the Depositary, substantially to the effect that the shares are subject to an effective registration statement and can be reissued free of restrictive legend upon request, as long as the Investor owns any Shares, (A) notice of a written statement sale by the Company Buyer and confirmation by Buyer that it has complied with the reporting requirements of the Exchange Actprospectus delivery requirements, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands provided that the Investor disclaims being an underwriter, but Company has not advised the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC Depositary orally or in writing that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECopinion has been withdrawn.
Appears in 1 contract
Samples: Securities Purchase Agreement (RedHill Biopharma Ltd.)
Registration Procedures and Expenses. The If and whenever the Company shall: ------------------------------------------------------------------------ is required by the provisions of Sections 2, 3 and 4 to use its best efforts to effect the registration of any of the Restricted Stock under the Securities Act, the Company will, as expeditiously as possible:
(a) prepare (and afford counsel for the selling holders reasonable opportunity to review and comment thereon) and file with the SEC, within 90 days after the Closing Date, Commission a registration statement (which, in the case of an underwritten public offering pursuant to Section 2 hereof, shall be on Form S-3 (a form of general applicability satisfactory to the "Registration Statement"), managing underwriter selected as therein provided) with respect to enable such securities and use its best efforts to cause such registration statement to become and remain effective for the resale period of the Shares by the Investors from time to time on a national securities exchange or in privately-negotiated transactionsdistribution contemplated thereby (deter mined as herein after provided);
(b) use its prepare (and afford counsel for the selling holders reasonable best efforts, subject opportunity to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 days after the Closing Date;
(creview and comment thereon) use its reasonable best efforts to prepare and file with the SEC Commission such amendments and supplements to the Registration Statement such registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the Registration Statement current and such registration statement effective for a the period not exceeding, specified in paragraph (a) above and as comply with the provisions of the Securities Act with respect to the Investor's Shares purchased hereunder, the earlier disposition of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased Restricted Stock covered by such Investor registration statement in this Offering have been sold pursuant to a accordance with the sellers' intended method of disposition set forth in such registration statementstatement for such period;
(dc) furnish to the Investor with respect each seller and to the Shares registered under the Registration Statement each underwriter such number of copies of the Registration Statement, Prospectuses registration statement and Preliminary Prospectuses in conformity with the requirements of the Securities Act and prospectus included therein (including each preliminary prospectus) as such other documents as the Investor persons may reasonably request, request in order to facilitate the public sale or other disposition of the Restricted Stock covered by such registration statement;
(d) use its best efforts to register or qualify the Restricted Stock covered by such registration statement under the securities or blue sky laws of such jurisdictions as the sellers of Restricted Stock or, in the case of an underwritten public offering, the managing underwriter, shall reasonably request (provided that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service of process in any jurisdiction);
(e) immediately notify each seller under such registration statement and each underwriter, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus contained in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(f) use its best efforts (if the offering is underwritten) to furnish, at the request of any underwriter, on the date that Restricted Stock is delivered to the underwriters for sale pursuant to such registration: (i) an opinion dated such date of counsel representing the Company for the purposes of such registration, addressed to the underwriters, stating that such registration statement has become effective under the Securities Act and that (A) to the best knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (B) the registration statement, the related prospectus, and each amendment or supplement thereof, comply as to form in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder (except that such counsel need express no opinion as to financial statements, the notes thereto, and the financial schedules and other financial and statistical data contained therein) and (C) to such other effects as may reasonably be requested by counsel for the underwriters or by such seller or its counsel, and (ii) a letter dated such date from the independent public accountants retained by the Company, addressed to the underwriters, stating that they are independent public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the financial statements of the Company included in the registration statement or the prospectus, or any amendment or supplement thereof, comply as to form in all material respects with the applicable accounting requirements of the Shares Securities Act, and such letter shall additionally cover such other financial matters (including information as to the period ending no more than five business days prior to the date of such letter) with respect to the registration in respect of which such letter is being given as such underwriters or seller may reasonably request; and
(g) during normal business hours and with reasonable notice, make available for inspection by each seller, any underwriter participating in any distribution pursuant to such registration statement, and any attorney, accountant or other agent retained by such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the InvestorCompany, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement and permit such seller, attorney, accountant or agent to participate in the preparation of such registration statement. For purposes of paragraphs (a) and (b) above, the period of distribution of Restricted Stock in a firm commitment underwritten public offering shall be deemed to extend until each underwriter has completed the distribution of all securities purchased by it, and the period of distribution of Restricted Stock in any other registration shall be deemed to extend until the earlier of the sale of all Restricted Stock covered thereby or six months after the effective date thereof. In connection with each registration hereunder, the selling holders of Restricted Stock will furnish to the Company in writing such information with respect to themselves and the proposed distribution by them as shall be reasonably necessary in order to assure compliance with federal and applicable state securities laws. In connection with each registration pursuant to Sections 2, 3 and 4 hereof covering an underwritten public offering, the Company agrees to enter into a written agreement with the managing underwriter selected in the manner herein provided in such form and containing such provisions as are customary in the securities business for such an arrangement between major underwriters and companies of the Company's size and investment stature, provided, however, that the obligation of -------- ------- such agreement shall not contain any such provision applicable to the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply which is inconsistent with the applicable provisions of the Securities Act hereof and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investorprovided, providedfurther, however, -------- ------- ------- that the time and place of the closing under said agreement shall be as mutually agreed upon among the Company and such managing underwriter. Notwithstanding anything to the contrary contained herein, the Company shall not be required to qualify to do business or consent to service include any class of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC securities in a timely manner all reports and registration statement other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECthan Common Stock.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------
(a) prepare If and whenever Nordstrom is required by the provisions of Section 6.6 or Section 6.7 to effect the registration of any of the shares of Nordstrom Stock under the Securities Act, Sellers will furnish in writing such information as is reasonably requested by Nordstrom for inclusion in the registration statement relating to such offering and such other information and documentation as Nordstrom may reasonably request, and Nordstrom will, as expeditiously as possible:
(i) Prepare and file with the SECSEC a Registration Statement with respect to such shares of Nordstrom Stock and use its Best Efforts to cause such Registration Statement to become and remain effective for such period as may be necessary to permit the successful marketing of such shares but, within 90 not exceeding 120 days after from the date on which the shares included therein may be initially offered and sold pursuant thereto; in the case of registration of shares of Nordstrom Stock pursuant to Section 6.6 which Sellers intend to offer on a continuous or delayed basis, such 120-day period shall be extended until the earlier of (A) the date upon which all such shares of Nordstrom Stock have been sold or (B) the first anniversary of the Closing Date, a registration statement on Form S-3 (provided that Rule 415, or any successor rule under the "Registration Statement")Securities Act, to enable the resale of the Shares by the Investors from time to time permits an offering on a national securities exchange continuous or in privately-negotiated transactions;delayed basis.
(bii) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 days after the Closing Date;
(c) use its reasonable best efforts to prepare Prepare and file with the SEC such amendments and supplements to the Registration Statement such registration statement and the Prospectus prospectus used in connection therewith as may be necessary UNOFFICIAL ENGLISH TRANSLATION FOR INFORMATION PURPOSE ONLY. DOCUMENT TO BE EXECUTED IN THE FRENCH LANGUAGE to keep comply with the Registration Statement current and effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) provisions of the Securities Act, or ; and to keep such registration statement effective for that period of time specified in Section 6(a)(i);
(iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish Furnish to the Investor with respect to the Shares registered under the Registration Statement applicable Sellers such number of copies of the Registration Statement, Prospectuses prospectuses and Preliminary Prospectuses preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor such Sellers may reasonably request, request in order to facilitate the public sale or other disposition of all the shares of Nordstrom Stock covered by such registration statement;
(iv) Use its Best Efforts to register or any qualify the shares of the Shares Nordstrom Stock covered by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply with the applicable provisions of the Securities Act and of such registration statement under such other securities or blue sky laws of such jurisdictions within the United States as such Sellers may reasonably request and do any and all other acts and things that may be applicable necessary or desirable to enable such Sellers to consummate the public sale or other disposition of their shares in connection with any use of such Prospectuses or Preliminary Prospectusesjurisdictions;
(ev) file documents required In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the Company for normal blue sky clearance in states specified in writing by the Investormanaging underwriter(s) of such offering, provided, however, that the Company and each such Seller shall not be required to 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 consentedalso enter into and perform its obligations under such an agreement;
(fvi) bear all expenses in connection with Notify such Sellers at any time when Nordstrom determines that a prospectus relating to any registration statement covering shares of Nordstrom Stock is required to be delivered under the procedures in paragraph (a) through (e) of this Section 7.1 and the registration Securities Act of the Shares pursuant happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the Registration Statement; andstatements therein not misleading in the light of the circumstances then existing;
(gvii) advise the Investors Advise such Sellers promptly after it shall receive receives notice or obtain obtains knowledge thereof, of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement registration statement or of the initiation or threatening of any proceeding for that purpose; purpose and the Company will promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.; and
(hviii) With Use its best efforts to furnish, at the request of such Sellers, on any date that shares of Nordstrom Stock covered by such registration statement are delivered to underwriters for sale in connection with a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold registration pursuant to Rule 144(k) or any other rule of similar effect or (B) this Section 6 if such shares are being sold through underwriters, or, if such shares are not being sold through underwriters, on the date as all of that the Investor's Shares shall have been resold; (ii) file registration statement with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish respect to the Investor upon request, as long as the Investor owns any Sharessuch shares becomes effective, (A) a written statement by the Company that it has complied with the reporting requirements an opinion, dated such date, of the Exchange Actcounsel representing Nordstrom for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to such Sellers, and (B) a copy letter dated such date, from the independent certified public accountants of Nordstrom, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Qunderwriters, if any, and to such Sellers.
(Cb) Sellers shall pay, or reimburse Nordstrom for, all costs and expenses reasonably incurred in complying with Section 6.6 or Section 6.7, including without limitation 38 - 38 - UNOFFICIAL ENGLISH TRANSLATION FOR INFORMATION PURPOSE ONLY. DOCUMENT TO BE EXECUTED IN THE FRENCH LANGUAGE the fees payable to the SEC, the New York Stock Exchange, any underwriters and any investment bankers; underwriting discounts and selling expenses; and reasonable attorneys', accountants' and other professionals' fees and costs with respect to such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that Nordstrom will use its Best Efforts to reasonably minimize the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company fees and costs of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECregistration.
Appears in 1 contract
Samples: Share Purchase and Contribution Agreement (Nordstrom Inc)
Registration Procedures and Expenses. The If and whenever the Company shall: ------------------------------------is required by the provisions of Section 4, 5 or 6 hereof to use its best efforts to effect the registration of any of the Restricted Stock or Founders Stock or both, as the case may be, under the Securities Act, the Company will, as expeditiously as possible;
(a) prepare (and afford counsel for the selling holders reasonable opportunity to review and comment thereon) and file with the SEC, within 90 days after the Closing Date, Commission a registration statement (which, in the case of an underwritten public offering pursuant to Section 4 hereof, shall be on Form S-3 (S-l or other form of general applicability satisfactory to the "Registration Statement"), managing underwriter selected as therein provided) with respect to enable such securities and use its best efforts to cause such registration statement to become and remain effective for the resale period of the Shares by the Investors from time to time on a national securities exchange or in privately-negotiated transactionsdistribution contemplated thereby (determined as hereinafter provided);
(b) use its prepare (and afford counsel for the selling holders reasonable best efforts, subject opportunity to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 days after the Closing Date;
(creview and comment thereon) use its reasonable best efforts to prepare and file with the SEC Commission such amendments and supplements to the Registration Statement such registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the Registration Statement current and such registration statement effective for a the period not exceeding, specified in paragraph (a) above and as shall comply with the provisions of the Securities Act with respect to the Investor's Shares purchased hereunderdisposition of all Restricted Stock or Founders Stock or both, as the earlier of (i) the second anniversary of the Closing Datecase may be, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased covered by such Investor registration statement in this Offering have been sold pursuant to a accordance with the sellers’ intended method of disposition set forth in such registration statementstatement for such period;
(dc) furnish to the Investor with respect each seller and to the Shares registered under the Registration Statement each underwriter such number of copies of the Registration Statement, Prospectuses registration statement and Preliminary Prospectuses in conformity with the requirements of the Securities Act and prospectus included therein (including each preliminary prospectus) as such other documents as the Investor persons may reasonably request, request in order to facilitate the public sale or other disposition of all the Restricted Stock or Founders Stock or both, as the case may be, covered by such registration statement;
(d) use its best efforts to register or qualify the Restricted Stock or Founders Stock or both, as the case may be, covered by such registration statement under the securities or blue sky laws of such jurisdictions as the sellers of Restricted Stock or Founders Stock or both, as the case may be, or, in the case of an underwritten public offering, the managing underwriter, shall reasonably request;
(e) immediately notify each seller under such registration statement and each underwriter, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the Shares happening of any event as a result of which the prospectus contained in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(f) notify each seller under such registration statement of (i) any request by the Investor, provided, however, that Commission for amendments or supplements to the obligation registration statement or the prospectus or for additional information or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Company registration statement or the initiation of any proceedings by any person for that purpose;
(g) to deliver copies furnish (if the offering is underwritten) at the request of Prospectuses any seller, on the date that Restricted Stock or Preliminary Prospectuses Founders Stock or both, as the case may be, is delivered to the Investor shall be subject underwriters for sale pursuant to such registration: (i) an opinion dated such date of counsel representing the Company for the purposes of such registration, addressed to the receipt by underwriters and to such seller, stating that such registration statement has become effective under the Company Securities Act and that (A) to the best knowledge of reasonable assurances from such counsel, no stop order suspending the Investor effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Investor will Securities Act, (B) the registration statement, the related prospectus, and each amendment or supplement thereof, comply as to form in all material respects with the applicable provisions requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder (except that such counsel need express no opinion as to financial statements, the notes thereto, and the financial schedules and other financial and statistical data contained therein) and (C) to such other effects as may reasonably be requested by counsel for the underwriters or by such seller or its counsel, and (ii) a letter dated such date from the independent public accountants retained by the Company, addressed to the underwriters, stating that they are independent public accountants within the meaning of the Securities Act and that, in the opinion of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required accountants, the financial statements of the Company for normal blue sky clearance included in states specified the registration statement or the prospectus, or any amendment or supplement thereof, comply as to form in writing by the Investor, provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection material respects with the procedures in paragraph applicable accounting requirements of the Securities Act, and such letter shall additionally cover such other financial matters (aincluding information as to the period ending no more than five business days prior to the date of such letter) through (e) of this Section 7.1 and with respect to the registration in respect of the Shares pursuant to the Registration Statementwhich such letter is being given as such underwriters or seller may reasonably request; and
(gh) advise the Investors promptly after it shall receive notice make available for inspection by each seller, any underwriter participating in any distribution pursuant to such registration statement, and any attorney, accountant or obtain knowledge other agent retained by such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the issuance Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement and permit such seller, attorney, accountant or agent to participate in the preparation of any stop order such registration statement. For purposes of paragraphs (a) and (b) above and of Section 4(c) hereof, the period of distribution of Restricted Stock or Founders Stock or both, as the case may be, in a firm commitment underwritten public offering shall be deemed to extend until each underwriter has completed the distribution of all securities purchased by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; it, and the Company will promptly use its reasonable efforts to prevent period of distribution of Restricted Stock or Founders Stock or both, as the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and case may be, in any other rule or regulation of the SEC that may at any time permit the Investor registration shall be deemed to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, extend until the earlier of (A) such the sale of all Restricted Stock or Founders Stock or both, as the case may be, covered thereby or six months after the effective date thereof. In connection with each registration hereunder, the selling holders of Restricted Stock or Founders Stock, as all of the Investor's Shares case may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) be, will furnish to the Investor upon requestCompany in writing such information with respect to themselves and the proposed distribution by them as shall be reasonably necessary in order to assure compliance with federal and applicable state securities laws. In connection with each registration pursuant to Sections 4, as long as 5 and 6 hereof covering an underwritten public offering, the Investor owns any Shares, (A) Company agrees to enter into a written statement by the Company that it has complied agreement with the reporting requirements of managing underwriter selected in the Exchange Act, (B) a copy manner herein provided in such form and containing such provisions as are customary in the securities business for such an arrangement between major underwriters and companies of the Company's most recent Annual Report ’s size and investment stature, provided that (1) the selling holders and their counsel shall have the opportunity to review and comment on Form 10-K or Quarterly Report on Form 10-Qsuch agreement, (2) such agreement shall not contain any such provision applicable to the Company which is inconsistent with the provisions hereof and (C3) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation time and place of the SEC that permits closing under said agreement shall be as mutually agreed upon among the Company, such managing underwriter and the selling holders of any such Shares without registration. The Company understands that Restricted Stock or Founders Stock, as the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECcase may be.
Appears in 1 contract
Samples: Registration Rights Agreement (Tandem Health Care, Inc.)
Registration Procedures and Expenses. (i) The Company shall: ------------------------------------shall prepare and file with the SEC, as promptly as reasonably practicable following Closing, but in no event later than 180 days following Closing (the “Filing Date”), a registration statement on Form S-1, covering the resale of theWarrant Shares (the “Registrable Securities” and the “Registration Statement”) and shall use its commercially reasonable efforts to have the Registration Statement declared effective within 270 days after the Closing.
(ii) The Company shall use its commercially reasonable best efforts to:
(a) prepare and file with the SEC, within 90 days after the Closing Date, a registration statement on Form S-3 (the "Registration Statement"), to enable the resale of the Shares by the Investors from time to time on a national securities exchange or in privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 days after the Closing Date;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus prospectus forming part thereof (the “Prospectus”) used in connection therewith as may be necessary or advisable to keep the Registration Statement current and effective for the Registrable Securities held by a Purchaser for a period not exceeding, with respect to ending on the Investor's Shares purchased hereunder, the earlier earliest of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor all Registrable Securities may sell all Shares then held by the Investor without restriction by the volume limitations of be sold pursuant to Rule 144(e) of 144 under the Securities Act, Act or any successor rule (“Rule 144”) during any three-month period without the requirement for the Company to be in compliance with the current public information required under Rule 144(c)(1) or (iii) such time as all Shares purchased by such Investor in this Offering Registrable Securities have been sold pursuant to a registration statement;statement or Rule 144. The Company shall notify each Purchaser promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective by the SEC and advise each Purchaser that the form of Prospectus contained in the Registration Statement or post-effective amendment thereto, as the case may be, at the time of effectiveness meets the requirements of Section 10(a) of the Securities Act or that it intends to file a Prospectus pursuant to Rule 424(b) under the Securities Act that meets the requirements of Section 10(a) of the Securities Act; ________ Purchaser’s Initials 2 Subscription Agreement Generation Hemp, Inc.
(db) furnish to the Investor Purchaser with respect to the Shares Registrable Securities registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses Statement and Preliminary Prospectuses the Prospectus (including supplemental prospectuses) filed with the SEC in conformity conformance with the requirements of the Securities Act and other such other documents as the Investor Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares Registrable Securities by the Investor, provided, however, that Purchaser;
(c) pay the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt expenses incurred by the Company in complying with this Section, including, all registration and filing fees, FINRA fees, exchange listing fees, printing expenses, fees and disbursements of reasonable assurances from counsel for the Investor that the Investor will comply with the applicable provisions of the Securities Act and of such other securities or Company, blue sky laws as may be fees and expenses and the expense of any special audits incident to or required by any such registration (but excluding attorneys’ fees of any Purchaser and any and all underwriting discounts and selling commissions applicable in connection with any use to the sale of such Prospectuses or Preliminary ProspectusesRegistrable Securities by the Purchasers);
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and
(gd) advise the Investors Purchasers, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company it will promptly use its commercially reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.; and
(he) With with a view to making available to the Investor Purchaser the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor Purchaser to sell Shares Registrable Securities to the public without registration, the Company covenants and agrees to use its commercially reasonable efforts to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may Registrable Securities qualify to be resold immediately pursuant to Rule 144(k) 144 or any other rule of similar effect during any three-month period without the requirement for the Company to be in compliance with the current public information required under Rule 144(c)(1) or (B) such date as all of the Investor's Shares Registrable Securities shall have been resoldresold pursuant to Rule 144 (and may be further resold without restriction); (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Exchange Act; and (iii) furnish to the Investor Purchaser upon request, as long as the Investor Purchaser owns any SharesRegistrable Securities, (A) a written statement by the Company that as to whether it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the Company's ’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor Purchaser of any rule or regulation of the SEC that permits the selling of any such Shares Registrable Securities without registration. ________ Purchaser’s Initials 3 Subscription Agreement Generation Hemp, Inc.
(iii) The Purchaser agrees and confirms that a requirement to the Company understands including such Purchaser’s Registrable Securities in the Registration Statement is that the Investor disclaims being an underwriterPurchaser will work in good faith with the Company to supply the Company with any and all information the Company may reasonably request from the Purchaser from time to time in connection with the preparation of the Registration Statement, but including, customary and reasonable representations and confirmations regarding the Investor being deemed an underwriter Warrant Shares held by the SEC Purchasers, information relating to the beneficial ownership of other securities of the Company held by such Purchaser and its affiliates, information regarding the persons with voting and dispositive control over the Purchaser and such other information as the Company or its legal counsel may reasonably request (which requirement may be waived by the Company).
(iv) The Purchasers acknowledge and understand that the Filing Date shall not relieve be extended in the event the Company is currently in the process of undertaking and/or is currently contemplating an offering by the Company of securities for its own account if the managing underwriter or placement agent shall have advised the Company in writing that such Registration Statement or the inclusion of such Registrable Securities in such registration statement will have a material adverse effect upon the ability of the Company to sell securities for its own account, and provided further that the Purchasers are not treated less favorably than others seeking to have their securities included in such registration statement. Notwithstanding the obligations set forth above, if any obligations it has hereunderSEC guidance sets forth a limitation on the number of securities permitted to be registered on the Registration Statement (including any other securities included by the Company in such Registration Statement; provided further that the Company shall not be prohibited from including other securities on such Registration Statement), the number of Registrable Securities to be included on such Registration Statement for the benefit of the Purchasers will be reduced pro rata between the Purchasers (or other parties) whose securities are included in such Registration Statement and the Company; provided further that the Company shall take action to file additional registration statements at the written request of the holders of a majority in interest of the Shares sold in the Offering after the effectiveness of the Registration Statement, subject to SEC rules and guidance and the requirements set forth above, provided, however, that if the Company receives notification from shall not be required to file more than one additional Registration Statement in any rolling six (6) month period. Notwithstanding the SEC above, the Purchasers agree that the Investor is deemed an underwriterCompany shall not be required to register securities totaling more than 1/3rd of its then public float on the Registration Statement. Further notwithstanding the above, then the period by which the Company is obligated may at any time take action to submit an acceleration request register the Warrant Shares under the Securities Act and the Purchasers agree to take reasonable actions and provide the SEC shall be extended Company reasonable information to the earlier of (i) the 90th day after facilitate any such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECregistration.
Appears in 1 contract
Registration Procedures and Expenses. The Company is obligated to do the following: The Company shall: ------------------------------------:
(a) As soon as reasonably practicable and in either event within thirty (30) days immediately following the date of each Closing, such actual date being referred to as a “Registration Date,” prepare and file with the SEC, within 90 days after the Closing Date, SEC a registration statement on Form S-3 (or, if Form S-3 is not then available, on such form as is then available) in order to register with the "Registration Statement"), SEC under the Securities Act a sale by the Participants on a delayed or continuous basis pursuant to enable Rule 415 under the resale Securities Act any or all of the Registrable Shares by through the Investors from time to time on a automated quotation system of the Nasdaq Market or the facilities of any national securities exchange on which the Company’s ordinary shares are then traded, or in privately-negotiated transactionstransactions (a “Registration Statement”);
(b) use its reasonable best efforts, subject to receipt of necessary information from the InvestorsParticipants, use its best efforts to cause the such Registration Statement to become effective as soon as practicable, but in no event later than 150 (the “Effective Date”) within 30 days after immediately following the Closing date of the applicable Registration Date (a “Required Effectiveness Date”) and take all other reasonable actions necessary under any federal law or regulation to permit all Registrable Shares to be sold or otherwise disposed of;
(c) use its reasonable best efforts if at any time, there is not an effective Registration Statement covering all of the Registrable Shares 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 Securities Act of any of its equity securities, other than on Form S-4 or Form S-8 (each as promulgated under the Securities Act) or their then equivalents relating to equity securities to be issued solely in connection with any acquisition of any entity or business or equity securities issuable in connection with stock option or other employee benefit plans, send to each Participant not then eligible to sell all of their Registrable Shares under Rule 144 in a three- month period, written notice of such determination and if, within ten days after receipt of such notice, any such Participant shall so request in writing, shall include in such registration statement all or any part of such Registrable Shares such Participant requests to be registered; provided that: (i) in the event that, in connection with any underwritten public offering, the managing underwriter(s) thereof shall impose a limitation on the number of ordinary shares which may be included in the Registration Statement because, in such underwriter(s)’ judgment, marketing or other factors dictate such limitation is necessary to facilitate public distribution, then the Company shall be obligated to include in such Registration Statement only such limited portion of the Registrable Shares with respect to which such Participant has requested inclusion hereunder as the underwriter shall permit; (ii) if an offering in connection with which a Participant is entitled to registration under this Section 9.2(c) is an underwritten offering, then each Participant whose Registrable Shares are included in such Registration Statement shall, unless otherwise agreed by the Company, offer and sell such Registrable Shares in an underwritten offering using the same underwriter or underwriters and, subject to the provisions of this Agreement, on the same terms and conditions as other ordinary shares included in such underwritten offering and shall enter into an underwriting agreement in a form and substance reasonably satisfactory to the Company and the underwriter or underwriters; and (iii) upon the effectiveness the registration statement for which piggy-back registration has been provided in this Section 9.2(c), any Event Payments payable to a Participant whose Shares are included in such registration statement shall terminate and no longer be payable;
(d) promptly notify each Participant, at any time when a prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in or relating to such Registration Statement contains an untrue statement of a material fact or omits to state any fact necessary to make the statements therein not misleading;
(e) promptly prepare and file with the SEC, and deliver to each Participant, such amendments and supplements to the such Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the such Registration Statement current and effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, until the earlier of (i) the second third anniversary of the date of the Initial Closing Date, or (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations termination of Rule 144(e) of the Securities Act, or (iii) such time obligation as all Shares purchased by such Investor provided in this Offering have been sold pursuant to a registration statementSection 9.8 below;
(df) furnish to the Investor with respect to the Shares registered under the Registration Statement each Participant such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably requestAct, in order to facilitate the public sale or other disposition of all or any of the Registrable Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply with Participants;
(g) no later than the applicable provisions of the Securities Act and of Registration Date, file such other securities or blue sky laws documents as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky state securities law clearance for the resale of the Registrable Shares in which states specified in writing of the United States as may be reasonably requested by the Investor, each Participant provided, however, that the Company shall not be required in connection with this paragraph (f) to qualify to do business as a foreign corporation or execute a general consent to service of process in any jurisdiction in which it is not now so qualified or has not so consentedjurisdiction;
(fh) no later than the applicable Registration Date, use its best efforts to cause all Registrable Shares to be listed on each securities exchange, if any, on which equity securities by the Company are then listed; and
(i) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any 9.2, other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: than (i) make fees and keep public information availableexpenses, as those terms are understood if any, of counsel or other advisers to the Participants, and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with any expenses relating to the SEC in a timely manner all reports and other documents required sale of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement Registrable Shares by the Company that it has complied with the reporting requirements of the Exchange ActParticipants, (B) a copy of the Company's most recent Annual Report on Form 10-K including broker’s commission, discounts or Quarterly Report on Form 10-Q, fees and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECtransfer taxes.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------
(a) prepare and Parent shall use its reasonable best efforts to file with the SEC, within 90 days after one (1) Business Day following the Closing DateClosing, an automatic shelf registration statement (as defined in Rule 405 under the Securities Act) on Form S-3 (an “Automatic Shelf Registration Statement”) (or, if Parent does not qualify as a well-known seasoned issuer as defined in Rule 405 under the Securities Act, a registration statement (which shall be on Form S-3 if Parent is then eligible to use such form)) permitting the public resale of all shares of Parent Common Stock issued pursuant to the Parent Share Issuance to the Voting Trust and/or any of the Voting Trustees (the "Registration Statement"), to enable the resale of the Shares by the Investors from time to time “Registrable Securities”) on a national securities exchange delayed or in privately-negotiated transactions;
(b) use its reasonable best efforts, subject continuous basis pursuant to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 days after the Closing Date;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) 415 of the Securities Act, or (iii) such time as all Shares purchased by such Investor Act in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity accordance with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any rules and regulations of the Shares SEC thereunder (such registration statement, the “Resale Registration Statement”). If the Resale Registration Statement is not an Automatic Shelf Registration Statement, Parent shall use its reasonable best efforts to cause the Resale Registration Statement to be declared effective by the Investor, provided, however, that SEC as soon as practicable after the obligation filing thereof. Parent shall use its reasonable best efforts to maintain the effectiveness of the Company Resale Registration Statement until the earlier of such time as (i) all Registrable Securities have been sold pursuant thereto and (ii) all Registrable Securities may be sold pursuant to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply with the applicable provisions of Rule 144 under the Securities Act and any restrictive legend on such Registrable Securities has been removed or will be removed upon resale. Parent agrees to indemnify and hold harmless each holder of Registrable Securities against any losses, claims, damages or liabilities to which such holder may become subject by reason of any untrue statement of a material fact contained in the Resale Registration Statement or any omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, except insofar as such losses, claims, damages or liabilities arise out of or are based upon information furnished in writing to Parent by or on behalf of such other securities holder for use in the Resale Registration Statement. Parent shall have the right to assume the defense and settlement of any claim or blue sky laws as suit for which Parent may be applicable responsible for indemnification under this Section 7.06. Parent shall pay the expenses incurred by it in complying with its obligations under this Section 7.06, including all registration and filing fees, exchange listing fees, fees and expenses of counsel for Parent, and fees and expenses of accountants for Parent, but excluding any brokerage fees, selling commissions or underwriting discounts incurred by the holders of Registrable Securities in connection with any use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of sales under the Company for normal blue sky clearance in states specified in writing by Resale Registration Statement. Notwithstanding anything to the Investorcontrary herein, provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph (a) through Parent shall promptly notify each holder of Registrable Securities if (ei) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order is issued or threatened by the SEC delaying or suspending the effectiveness any state securities commission in respect of the Resale Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.or
Appears in 1 contract
Samples: Merger Agreement (Eaton Vance Corp)
Registration Procedures and Expenses. The Company shall: ------------------------------------is obligated to do the following:
(a) The Company shall use its commercially reasonable efforts to prepare and file with the SECCommission, within 90 days not later than the second business day after the Closing Datedate on which the Company files its annual report on Form 10-K for its fiscal year ending December 31, 2007 with the SEC, a registration statement on Form S-3 (or such other registration form that the "Registration Statement"), Company may then be eligible to enable use) in order to register with the Commission the resale by the Purchasers, from time to time, of the Shares by through the Investors from time to time on a Principal Market or the facilities of any national securities exchange on which the Company’s Common Stock is then traded, or in privately-negotiated transactions;transactions (a “Registration Statement”). The Company shall use its commercially reasonable efforts to cause such Registration Statement to be declared effective as soon thereafter as reasonably practicable.
(b) If such a Registration Statement has been filed, the Company shall use its commercially reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 days after the Closing Date;
(c) use its reasonable best efforts to prepare and file with the SEC Commission (i) such amendments and supplements to the Registration Statement and the Prospectus prospectus used in connection therewith therewith, (ii) such SEC reports and (iii) such other filings required by the Commission, in each case as may be necessary to keep the Registration Statement current effective and effective for a period not exceeding, with respect to misleading until the Investor's Shares purchased hereunder, the earlier earliest of (iA) the second anniversary date of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iiiB) such time as all of the Shares purchased held by such Investor in this Offering have been the Purchasers can be sold within a given three-month period pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered Rule 144 under the Registration Statement such number of copies Securities Act. Notwithstanding the foregoing, following the effectiveness of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements Company may, at any time, suspend the effectiveness of the Securities Act Registration Statement for up to 60 days, as appropriate (a “Suspension Period”), by giving notice to the Purchasers, if the Company shall have determined that the Company may be required to disclose any material corporate development. Notwithstanding the foregoing, the Company may not suspend the effectiveness of the Registration Statement more than twice during any twelve-month period. Each Purchaser agrees that, upon receipt of any notice from the Company of a Suspension Period, such Purchaser will not sell any Shares pursuant to the Registration Statement until (i) such Purchaser is advised in writing by the Company that the use of the applicable prospectus may be resumed, (ii) such Purchaser has received copies of any additional or supplemental or amended prospectus, if applicable, and (iii) such other documents as the Investor may reasonably request, Purchaser has received copies of any additional or supplemental filings which are incorporated or deemed to be incorporated by reference in such prospectus.
(c) In order to facilitate the public sale or other disposition of all or any of the Shares by the Investoreach Purchaser, provided, however, that the obligation of the Company shall furnish to deliver each Purchaser with respect to the Shares registered under the Registration Statement such number of copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply prospectuses, prospectus supplements and preliminary prospectuses as such Purchaser reasonably requests in conformity with the applicable provisions requirements of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;Act.
(ed) The Company shall file any documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, each Purchaser; provided, however, that the Company shall not be required to 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;.
(fe) Other than fees and expenses, if any, of counsel or other advisers to the Purchasers, which fees and expenses shall be borne by the Purchasers, the Company shall bear all expenses (exclusive of any brokerage fees, underwriting discounts and commissions) in connection with the procedures in paragraph paragraphs (a) through (ed) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued8.1.
(hf) With a view to making available to the Investor Purchasers the benefits of Rule 144 promulgated under the Securities Act (or its successor rule“Rule 144”) and any other rule or regulation of the SEC Commission that may at any time permit the Investor a Purchaser to sell Shares to the public without registration or pursuant to registration, the Company covenants and agrees to use its commercially reasonable efforts to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all the second anniversary of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect Closing Date or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC Commission in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor any Purchaser upon request, as long as the Investor Purchaser owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K annual or Quarterly Report on Form 10-Qquarterly report of the Company, and (C) such other information as may be reasonably requested in order to avail the Investor any Purchaser of any rule or regulation of the SEC Commission that permits the selling of any such Shares without registration. The Company understands that registration under the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECSecurities Act.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Corcept Therapeutics Inc)
Registration Procedures and Expenses. The Company So long as the ------------------------------------ Stockholder has not initiated the termination of his employment with the Purchaser pursuant to Section 4.01 of the Employment Agreement between the Stockholder and the Purchaser dated as of the date hereof, Purchaser shall: ------------------------------------:
(a) as soon as practicable after the closing date but in no event later than ninety (90) days after the closing date, prepare and file with the SEC, within 90 days after Securities and Exchange Commission (the Closing Date, "Commission") a registration statement on Form S-3 which meets the requirements of Rule 415 promulgated under the Securities Act (the a "Shelf Registration Statement"), to enable ) covering the resale of the Shares sale by the Investors Stockholder from time to time on of one half of the shares of the Purchaser Common Stock received by the Stockholder in the Merger, and as soon as practicable after the first anniversary of the closing date, but in no event later than ninety (90) days after the first anniversary of the closing date, a national securities exchange or in privately-negotiated transactions;Shelf Registration Statement covering the sale by the Stockholder from time to time of the remaining shares of Purchaser Common Stock.
(b) use its reasonable best efforts, subject to receipt of necessary information from the InvestorsStockholder, to cause each of the Shelf Registration Statement Statements to become effective as soon as practicable, but in no event later than 150 days after the Closing Dateeffective;
(c) use its reasonable best efforts to prepare and file with the SEC Commission such amendments and supplements to the Shelf Registration Statement Statements and the Prospectus prospectus used in connection therewith as may be necessary to keep the Shelf Registration Statement current and Statements effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, until the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held Purchaser Common Stock registered by such Shelf Registration Statement has been sold, or one year from the Investor without restriction by the volume limitations of Rule 144(e) date of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statementinitial filing thereof;
(d) during the period referred to in (c) above, prepare and promptly file with the Commission, and promptly notify the Stockholder of the filing of, such amendment or supplement to each such Shelf Registration Statement and the prospectus as may be necessary to correct any statements or omissions if, at any time when a prospectus relating to the Purchaser Common Stock is required to be delivered under the Securities Act, any event has occurred the result of which is that any such prospectus then in effect would include or incorporate an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading in light of the circumstances in which they were made;
(e) advise the Stockholder, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of any of such Shelf Registration Statements or the initiation or threatening of any proceeding for that purpose and promptly use its diligent best efforts to prevent the issuance of any stop order and to obtain its withdrawal if such stop order should be issued;
(f) furnish to the Investor Stockholder with respect to the Shares Purchaser Common Stock registered under any of the Shelf Registration Statement Statements such number of copies of the Registration Statement, Prospectuses prospectuses and Preliminary Prospectuses preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor Stockholder may reasonably requestrequest (but in no event more than 100), in order to facilitate the public sale or other disposition of all or any of the Shares registered Purchaser Common Stock by the Investor, Stockholder; provided, however, that the obligation of the Company -------- ------- Purchaser to deliver copies of Prospectuses prospectuses or Preliminary Prospectuses preliminary prospectuses to the Investor Stockholder shall be subject to the receipt by the Company Purchaser of reasonable assurances from the Investor Stockholder that the Investor Stockholder 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 such Prospectuses prospectuses or Preliminary Prospectusespreliminary prospectuses;
(eg) file documents required of the Company Purchaser for normal blue sky clearance in states reasonably specified in writing by the InvestorStockholder, provided, however, that the Company Purchaser shall not be required to 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
(fh) bear all expenses in connection with the procedures in paragraph paragraphs (a) through (eg) of this Section 7.1 11.1 and the registration of the Shares Purchaser Common Stock pursuant to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge each of the issuance Shelf Registration Statements, other than fees and expenses, if any, of any stop order by the SEC delaying counsel or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available other advisers to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECStockholder.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------, in accordance with the terms of the Stock Purchase Agreements:
(a1) as soon as practicable, give written notice to the holders of any Restricted Securities (as such term is defined in the Stock Purchase Agreements) of the Company of the Company's intention to register the Shares pursuant to this Section 8;
(2) as soon as practicable (and in any event within five (5) business days after the date hereof), prepare and file with the SEC, within 90 days after the Closing Date, Commission a registration statement on Form S-3 (the "Registration Statement"), to enable ) covering the resale of the Shares by the Investors Purchasers from time to time on a national securities exchange the Nasdaq National Market or in privately-privately negotiated transactions;
(b3) use its reasonable best efforts, subject to receipt of necessary information from the InvestorsPurchasers, to cause the Registration Statement to become effective as soon as practicable, practicable but in no event later than 150 sixty days after the Closing Datedate thereof;
(c4) use its reasonable best efforts to prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to the Investoreach Purchaser's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) such time after the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) first anniversary of the Securities ActClosing Date when such Purchaser's Shares purchased hereunder and then owned by such Purchaser represent no more than one percent of the Company's outstanding common stock, or (iii) such time as all Shares purchased by such Investor in Purchaser pursuant to this Offering Agreement have been sold pursuant to a registration statement;the Registration Statement.
(d5) furnish to each of the Investor Purchasers with respect to the Shares registered under the Registration Statement (and to each underwriter, if any, of such Shares) such number of copies of the Registration Statement, Prospectuses prospectuses and Preliminary Prospectuses preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the InvestorPurchasers, provided, however, that the obligation of the Company to deliver copies of Prospectuses prospectuses or Preliminary Prospectuses preliminary prospectuses to the Investor Purchasers shall be subject to the receipt by the Company and Seller of reasonable assurances from the Investor Purchaser that the Investor Purchaser 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 such Prospectuses prospectuses or Preliminary Prospectusespreliminary prospectuses;
(e6) file documents required of the Company for normal blue sky clearance in all states specified in writing by the InvestorPurchaser, provided, however, that the Company shall not be required to 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
(f7) bear all expenses in connection with the procedures in paragraph paragraphs (a1) through (e6) of this Section 7.1 8(a) and the registration of the Shares pursuant to the Registration Statement; and
(g) advise , including the Investors promptly after it shall receive notice reasonable fees and expenses, if any, of counsel or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available other advisers to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registrationPurchasers. The Company understands that each of the Investor Purchasers disclaims being an underwriter, but the Investor a Purchaser being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Samples: Stock Purchase Agreement (Liberty Technologies Inc)
Registration Procedures and Expenses. The Company hereby agrees that it shall: ------------------------------------:
(a) prepare and file with the Securities and Exchange Commission (the “SEC”), within 90 as soon as reasonably practicable after the date of the Contribution, but in no event more than 30 days after the Closing DateContribution, a shelf registration statement on Form S-3 covering the Registrable Shares, except to the extent it has an existing shelf registration statement covering the Common Stock that may be used for the purposes contemplated herein (such new or existing registration statement and any successor registration statement filed under the Securities Act of 1933, as amended (the "“Securities Act”), hereinafter referred to as the “Registration Statement"”), to enable the resale of Manager to sell the Registrable Shares by the Investors from time to time in the manner contemplated by the plan of distribution set forth in the Registration Statement, as amended by any prospectus supplement or post-effective amendment thereto, and use its reasonable commercial efforts to cause such Registration Statement, if not effective on a national securities exchange the date of the Contribution, to be declared effective as promptly as reasonably possible after filing and to remain continuously effective until the earlier of (i) the date on which all Registrable Shares are sold and (ii) the date which is 90 days after the date on which the number of Registrable Shares held by the Trust is less than one percent of the shares of Common Stock then outstanding (the “Registration Period”); provided, however, that the Company shall not be required to file such Registration Statement or in privately-negotiated transactionscause such Registration Statement to be declared effective during the pendency of any suspension period pursuant to Sections 1.2(c) or (d) below;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 days after the Closing Date;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements (including post-effective amendments) to the Registration Statement and supplements to the Prospectus used prospectus or any prospectus supplements filed with the SEC pursuant to Rule 424(b) under the Securities Act, or if no such filing is required, as included in connection therewith the Registration Statement (the “Prospectus”), as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to at all times until the Investor's Shares purchased hereunder, the earlier of (i) the second anniversary end of the Closing DateRegistration Period; provided, (iihowever, that it shall not be required to file any such amendment or prospectus supplement during the pendency of any suspension period pursuant to Sections 1.2(c) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iiid) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statementbelow;
(dc) furnish to the Investor Manager with respect to the Shares registered under the Registration Statement such reasonable number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses Prospectus in conformity with the requirements of the Securities Act Act, and such other documents as the Investor Manager may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary ProspectusesManager;
(ed) use its reasonable commercial efforts to file documents documents, if any, required of the Company for normal blue sky clearance relating to the Registrable Shares in such states specified as the Manager shall reasonably designate in writing by the Investor, writing; provided, however, that the Company shall not be required to 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;
(e) use its reasonable commercial efforts to cause the Registrable Shares to be listed on the New York Stock Exchange (the “NYSE”) as soon as reasonably practicable after the date of the Contribution; and
(f) bear all expenses in connection with the procedures in paragraph actions contemplated by paragraphs (a) through (e) of this Section 7.1 1.1 and the registration of the Registrable Shares pursuant to the Registration Statement; and
(g) advise , including reasonable fees and expenses of legal counsel to the Investors promptly after it shall receive notice or obtain knowledge Manager incurred in connection with the registration and sale of the issuance of any stop order Registrable Shares, but excluding underwriting discounts, brokerage fees and commissions incurred by the SEC delaying Manager, the Trust or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment Plan, if such stop order should any. It shall be issued.
(h) With a view to making available condition precedent to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required obligations of the Company under to take any action pursuant to this Section 1.1 that the Exchange Act; and (iii) furnish Manager shall provide such reasonable assistance to the Investor upon requestCompany and furnish, or cause to be furnished, to the Company in writing such information regarding the Manager, the Registrable Shares to be sold, and the intended method or methods of disposition of the Registrable Shares, as long as shall be required to effect the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements registration of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, Registrable Shares and (C) such other information as may be reasonably requested in order required from time to avail time under the Investor of any rule or regulation of Securities Act and the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECrules and regulations thereunder.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) subject to receipt of necessary information from the Investors, prepare and file with the SEC, within 90 as soon as practicable, but in no event later than ten (10) days after the Closing Date, a registration statement on Form S-3 (the "Registration Statement"), ) to enable the resale of the Shares by the Investors from time to time on a national securities exchange through the automated quotation system of the Nasdaq Stock Market or in privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investors, efforts to cause the Registration Statement to become effective as soon as practicable, but (i) if the staff of the Securities and Exchange Commission determines that it will not review such Registration Statement prior to declaring it effective, then in no event later than 150 thirty (30) days after the Closing Date;Registration Statement is filed by the Company, or (ii) if such Registration Statement is reviewed by the staff of the Securities and Exchange Commission, then in no event later than ninety (90) days after the Registration Statement is filed by the Company.
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to the each Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, Act or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;sold.
(d) furnish to the Placement Agent and to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and;
(g) advise the Investors Investors, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company it will promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.; and
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Investor shall furnish to the Company such information regarding itself, the Shares to be sold by Investor, and the intended method of disposition of such securities as shall be reasonably required to effect the registration of the Shares. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 120 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Samples: Stock Purchase Agreement (Endocardial Solutions Inc)
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) prepare and file with the SEC, within 90 days after as soon as reasonably practicable following the Closing Date, a registration statement on Form S-3 (the "Registration Statement"), to enable the resale of the Shares by the Investors from time to time on a national securities exchange or in privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event by the later than 150 of thirty (30) days following the Closing Date and ten (10) calendar days after the Closing Company files the 2009 Form 10-K with the SEC (the “Filing Date;
(c) use its reasonable best efforts to ”), prepare and file with the SEC such amendments and supplements a Registration Statement on Form S-3 (or any successor form to Form S-3) (the “S-3 Registration Statement”) relating to the Registration Statement resale of all of the Conversion Shares and Warrant Shares by the Prospectus used Purchasers, together with any shares of capital stock issued or issuable, from time to time, upon any reclassification, share combination, share subdivision, stock split, share dividend or similar transaction or event or otherwise as a distribution on, in connection therewith as may be necessary to keep the Registration Statement current and effective exchange for a period not exceeding, or with respect to the Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares foregoing, in each case held at the relevant time by a Purchaser (the Investor, “Registrable Securities”); provided, however, that in the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor event that the Investor will comply with SEC specifically prohibits the applicable provisions S-3 Registration Statement from including all Registrable Securities of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
each Purchaser (e“Commission Guidance”) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, (provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection advocate with the procedures in paragraph (a) through (e) of this Section 7.1 and SEC for the registration of all or the Shares pursuant to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge maximum number of the issuance of any stop order Registrable Securities permitted by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and Commission Guidance), then the Company will promptly use its reasonable efforts to prevent file such additional Registration Statements (the issuance of any stop order or to obtain its withdrawal “Subsequent Registration Statements,” together with the Initial Registration Statement, the “Registration Statements”) at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such practicable date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated permitted by Commission Guidance to submit an acceleration request file such additional Registration Statements related to the SEC shall Registrable Securities. If any Commission Guidance specifically limits the number of Registrable Securities to be extended registered on a particular Registration Statement, the number of Registrable Securities to the earlier of (i) the 90th day after be registered on such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with will first be reduced by the SEC.Registrable Securities represented by Warrant Shares on a pro rata basis based on the total number of unregistered Warrant Shares held by such Purchasers on a fully diluted basis, and second by the Registrable Securities represented by Conversion Shares on a pro rata basis based on the total number of unregistered Preferred Shares held by such Purchasers. If the context so requires, Conversion Shares and Warrant Shares of any Purchaser will not be considered Registrable Securities for the purposes of a certain determination of Registrable Securities hereunder if, at that time of such determination, they can be sold pursuant to Rule 144 without volume or manner of sales limitations or have been sold under an effective Registration Statement. In the event that Form S-3 (or any successor form to Form S-3) becomes unavailable to maintain registration of the
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) as soon as practicable, but in no event later than [five] days following the Closing Date (the “Filing Deadline”), prepare and file with the SEC, within 90 days after Commission the Closing Date, a registration statement Registration Statement on Form S-3 (the "Registration Statement"), relating to enable the resale of the Shares by the Investors Purchaser and the Other Purchasers from time to time on a the [Stock Exchange], or the facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the InvestorsPurchasers, to cause the Commission to declare the Registration Statement to become effective as soon as practicable[upon filing]16 OR [[within [30] days or, but in no event later than 150 if the Registration Statement is selected for review by the Commission, [90] days after the Closing DateDate]17 (the “Effective Deadline”)];
(c) use its reasonable best efforts to promptly prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to until the Investor's Shares purchased hereunder, the earlier earlier18 of (i) one year19 after the second anniversary effective date of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities ActRegistration Statement, or (iiiii) such time as the Shares become eligible for resale by each of the Purchasers without any volume limitations or other restrictions pursuant to Rule 144 under the Securities Act or any other rule of similar effect; provided that, for the avoidance of doubt, in no event shall the Company have any obligation to keep the Registration Statement effective after such time as all of the Shares purchased by such Investor in this Offering have been sold pursuant to a registration statementthe Registration Statement or Rule 144;
(d) furnish to the Investor Purchaser with respect to the Shares registered under the Registration Statement (and to each underwriter, if any, of such Shares) such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act prospectuses and such other documents as the Investor Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary ProspectusesPurchaser;
(e) file documents required of the Company for normal blue sky Blue Sky clearance in states specified in writing by the Investor, Purchaser; provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph paragraphs (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement, other than fees and expenses, if any, of counsel or other advisers to the Purchaser or the Other Purchasers or underwriting discounts, brokerage fees, and commissions incurred by the Purchaser or the Other Purchasers, if any in connection with the offering of the Shares pursuant to the Registration Statement;
(g) file a Form D with respect to the Shares as required under Regulation D and to provide a copy thereof to the Purchaser promptly after filing;
(h) issue a press release describing the transactions contemplated by this Agreement on the Closing Date; and
(gi) advise in order to enable the Investors promptly after it shall receive notice or obtain knowledge Purchasers to sell the Shares under Rule 144 to the Securities Act, for a period of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly one year from Closing,20 use its commercially reasonable efforts to prevent comply with the issuance requirements of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant including without limitation, use its commercially reasonable efforts to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file comply with the SEC in a requirements of Rule 144(c)(1) with respect to public information about the Company, and to timely manner file all reports and other documents required of to be filed by the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. Act.21 The Company understands that the Investor Purchaser disclaims being an underwriter, but the Investor Purchaser being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if . A draft of the Company receives notification from proposed form of the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated questionnaire related to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with to be completed by the SEC.Purchaser is attached hereto as Appendix I.
Appears in 1 contract
Samples: Purchase Agreement
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) subject to receipt of necessary information from the Investors, prepare and file with the SEC, within 90 thirty days after the Closing Date (the "Filing Date"), a registration statement on Form S-3 (or other successor or appropriate form (the "Registration Statement"), ) to enable the resale of the Shares by the Investors from time to time through the automated quotation system of the Nasdaq National Market (or such other exchange or trading market on a national securities exchange which the Shares are publicly traded, if applicable) or in privately-negotiated transactions; PROVIDED THAT the Filing Date shall be extended for up to an additional 15 days in the event that the Company has not received all information as shall be reasonably requested by the Company in writing for use in the Registration Statement by the Filing Date; PROVIDED FURTHER that the Filing Date shall be extended by at least five business days from the date that the Company has received all such information that the Company has requested; and PROVIDED FURTHER that the Company has requested such information within 10 days from the Closing Date;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 within 90 days after the Closing DateRegistration Statement is filed by the Company;
(c) use its reasonable best efforts to prepare and file promptly with the SEC such amendments and supplements to the Registration Statement and the Prospectus used in connection therewith (a "Prospectus") as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to the each Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the such Investor may sell all Shares then held by the such Investor without restriction by the volume limitations of under Rule 144(e144(k) of the Securities Act, or (iiiii) such time as all Shares purchased by such Investor in this Offering hereunder have been sold pursuant to a registration statementstatement or (iii) two years;
(d) furnish to the each Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and preliminary Prospectuses (a "Preliminary Prospectuses Prospectus") in conformity with the requirements of the Securities Act and such other documents as the such Investor may reasonably request promptly after receiving such request, in order to facilitate the public sale or other disposition of all or any of the Shares by the such Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the such Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the such Investor 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 such Prospectuses or Preliminary Prospectuses;
(e) timely file documents required of the Company for normal blue sky clearance in states specified in writing by the each Investor, provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 4.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors each Investor, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation or threat of any proceeding for that purpose; and the Company it will promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available . Subject to the Investor terms herein, in the benefits of Rule 144 (or its successor rule) and any other rule or regulation of event that the SEC that may at any time permit Registration Statement is not filed by the Investor to sell Shares to the public without registrationFiling Date, the Company covenants shall, for no additional consideration, pay to each Investor as liquidated damages and agrees to: not as a penalty an amount in cash equal to one percent (i1%) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule amount invested by such Investor for each 30 day period in which the Registration Statement remains unfiled; provided, however, that in no event shall the amount of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement liquidated damages payable by the Company that it has complied with the reporting requirements to any Investor exceed twelve (12%) of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) amount invested by such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registrationInvestor. The Company understands that the each Investor disclaims being an underwriter, but the if such Investor being is deemed an underwriter by the SEC SEC, the Company shall not relieve the Company be relieved of any obligations it has hereunder, providedPROVIDED, however, HOWEVER that if the Company receives notification from the SEC that the such Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended for a reasonable period not to exceed the earlier of (i) the 90th day after such SEC notification, or (ii) 150 120 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------
(a) prepare Peoples shall:
(i) subject to receipt of information from the Holders that is both customary and necessary, use commercially reasonable efforts to file the Registration Statement with the SEC as soon as practicable following the Closing Date, but in no event later than forty-five (45) days following the Closing Date (the date of such filing with the SEC, within 90 days after the Closing Date, a registration statement on Form S-3 (the "Registration StatementFiling Date"), to enable the resale of the Shares by the Investors from time to time on a national securities exchange or in privately-negotiated transactions;
(bii) not less than five (5) business days prior to the filing of the Registration Statement with the SEC, furnish to the Holders and to counsel for the Holders, a copy of the Registration Statement as proposed to be filed and Peoples shall use commercially reasonable efforts to reflect in the Registration Statement, when filed with the SEC, such comments as the Holders and their counsel reasonably propose;
(iii) not less than five (5) business days prior to the filing thereof with the SEC, furnish to the Holders and to counsel for the Holders, a copy of each amendment to the Registration Statement, and each amendment or supplement, if any, to the Prospectus , and Peoples shall use commercially reasonably efforts to reflect in each such document, when filed with the SEC, such comments as the Holders and their counsel reasonably propose;
(iv) use its commercially reasonable best efforts, subject to receipt of necessary information from the InvestorsHolders, as reasonably determined upon consultation with counsel to Peoples, to cause the Registration Statement to become effective as soon as practicablepracticable after the Filing Date, but in no event later than 150 60 days after following the Closing Filing Date, unless under review by the SEC (the "Effective Date");
(cv) use its commercially reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act, and prepare and file with the SEC such amendments and supplements to the Registration Statement and amendments and supplements to the Prospectus used required by the Securities Act in connection therewith as may be necessary order to keep permit the Holders to use the Prospectus forming part of the Registration Statement current and effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, until the earlier of (i) the second anniversary of the Closing Date, Date or (ii) the date on which all of the Investor may sell all Shares then held Registrable Securities covered by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering Registration Statement have been sold pursuant to a registration statementthereunder;
(dvi) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of each Holder, without charge, as many copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act Prospectus (including any preliminary prospectus), any amendment or supplement thereto, and such other documents as the Investor such Holder may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, ; provided, however, that the obligation of the Company Peoples to deliver copies of Prospectuses the Prospectus, and amendments or Preliminary Prospectuses supplements thereto, to the Investor Holder shall be subject to the receipt by the Company Peoples of reasonable assurances from the Investor such Holder that the Investor 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 such Prospectuses Prospectus or Preliminary Prospectusesany amendments or supplements thereto;
(evii) file documents required arrange, if necessary, for the registration or qualification of the Company for normal Registrable Securities under the securities or blue sky clearance in laws of such states specified in writing by any of the Investor, Holders and maintain such registration or qualification in effect so long as required; provided, however, that the Company Peoples shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now then so qualified or has not so consented;
(fviii) bear all fees and expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 2.1 and the registration of the Shares Registrable Securities pursuant to the Registration Statement; and;
(gix) advise the Investors Holders, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; , and the Company will promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued;
(x) advise the Holders promptly after it shall receive notice or obtain knowledge of the issuance of any suspension of the registration or qualification of the Registrable Securities for sale in any jurisdiction or of the initiation of any proceeding for that purpose, and use its commercially reasonable efforts to prevent such event or to obtain reinstatement of the registration or qualification of the Registrable Securities at the earliest possible moment if such event occurs; and
(xi) ensure that the Registration Statement and any amendment or supplement thereto and any Prospectus forming part thereof, and any amendment or supplement thereto (i) complies with the applicable requirements of the Securities Act and (ii) does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(hb) With a view to making available to the Investor Holders the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC Rule that may at any time permit the Investor Holders to sell Shares Registrable Securities to the public without registration, the Company Peoples covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares Registrable Securities may be resold pursuant to Rule 144(k) or any other rule Rule of similar effect or (B) such date as all of the Investor's Shares Holders' Registrable Securities shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of Peoples under the Company Securities Act and under the Exchange Act; and (iii) furnish to the Investor any Holder upon request, as long as the Investor such Holder owns any SharesRegistrable Securities, (A) a written statement by the Company Peoples that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the Company's Peoples' most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor such Holder of any rule or regulation of the SEC Rule that permits the selling of any such Shares Registrable Securities without registration. The Company understands ; and (iv) subject to the conditions set forth in this Agreement, and provided the conditions of Rule 144(k) are satisfied in all respects, including without limitation, that such Holder is not an Affiliate of Peoples, as such term is defined in Rule 144, use commercially reasonable efforts to cause the Investor disclaims being an underwriterremoval of any restrictive legends on the Registrable Securities necessary to enable such Holder to sell the Registrable Securities under Rule 144(k).
(c) It shall be a condition precedent to the obligations of Peoples to take any action pursuant to this Section 2.1 that any Holder shall furnish to Peoples, but pursuant to the Investor being deemed an underwriter written request by Peoples, such information regarding the Holder, the Registrable Securities to be sold by the SEC shall not relieve Holder and the Company intended method of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC disposition of such Registrable Securities as shall be extended required to effect the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing registration of the Registration Statement with the SECRegistrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (Peoples Bancorp Inc)
Registration Procedures and Expenses. The Company shall: ------------------------------------
(a) In consideration of the covenants of the Holders under Sections 1, 2 and 3.2, the Company agrees to use commercially reasonable efforts to prepare and file with the SEC, within 90 days after Securities and Exchange Commission (the Closing Date, "Commission") a registration statement on Form S-3 SB-2 or other applicable form as determined by the Company (the "Registration Statement") for the purpose of registering under the Securities Act of 1933, as amended (the "Securities Act"), to enable the resale sale of the Shares shares of Common Stock received by the Investors Holders upon the conversion of their rights under the Credit Agreement and the Transfer Agreement (the "Shares") by the Holders from time to time on a national the facilities of any securities exchange or trading system on which the Common Stock is then traded or in privately-negotiated transactions;
(b) . For purposes of this Section 3.1, the term "Shares" shall include any other securities of the Company issued in exchange for the Shares, as a dividend on the Shares or in connection with a stock split or other reorganization transaction affecting the Shares. The Company shall use its commercially reasonable best efforts, subject to receipt of necessary information from the Investors, efforts to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 days after . The date on which the Closing Registration Statement is declared effective by the Commission is referred to herein as the "Effective Date;".
(cb) use its reasonable best efforts to The Company shall prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the Prospectus used in connection therewith prospectus forming a part thereof as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to until the Investor's Shares purchased hereunder, the earlier of earliest date on which (i) all the second anniversary Shares have been disposed of pursuant to the Closing DateRegistration Statement, (ii) all of the date on which Shares then held by the Investor Holders may sell be sold under the provisions of Rule 144 without limitation as to volume, whether pursuant to Rule 144(k) or otherwise, or (iii) the Company has determined that all Shares then held by the Investor Holders may be sold without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and has removed any stop transfer instructions relating to such other documents Shares and offered to cause to be removed any restrictive legends on the certificates, if any representing such Shares (the period between the Effective Date and the earliest of such dates is referred to herein as the Investor may reasonably request, in order to facilitate "Registration Period"). At any time after the public sale or other disposition of all or any end of the Shares by Registration Period, the Investor, provided, however, that Company may withdraw the obligation Registration Statement and its obligations under this Section 3 (other than its obligations under Section 3.3) shall automatically terminate.
(c) Each of the Company Holders agrees to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply with all federal and state securities laws and the applicable provisions of the Securities Act rules and of such other securities or blue sky laws as may be applicable regulations promulgated thereunder in connection with any use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required sale by it of the Company for normal blue sky clearance in states specified in writing by Shares, whether or not such sale is pursuant to the Investor, provided, however, that the Company shall not be required to 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;
(f) bear all expenses in Registration Statement. In connection with the procedures in paragraph (a) through (e) sale of this Section 7.1 and the registration of the any Shares pursuant to the Registration Statement; and
(g) advise , but without limiting the Investors promptly after it shall receive notice or obtain knowledge generality of the issuance foregoing sentence, the Holders shall (i) comply with the provisions of any stop order by Regulation M promulgated under the SEC delaying or suspending Exchange Act, and (ii) deliver to the effectiveness purchaser of Shares the prospectus forming a part of the Registration Statement or of the initiation of any proceeding for that purpose; and all relevant supplements thereto which have been provided by the Company will promptly use its reasonable efforts to prevent the issuance of any stop order Holders on or prior to obtain its withdrawal at the earliest possible moment if such stop order should be issuedapplicable delivery date.
(hd) With The Company shall not be obligated to prepare and file a view to making available post-effective amendment or supplement to the Investor Registration Statement or the benefits prospectus constituting a part thereof during the continuance of Rule 144 (or its successor rule) and a Blackout Event. A "Blackout Event" means any other rule or regulation of the SEC that may at any time permit following: (a) the Investor to sell Shares to the public without registration, possession by the Company covenants and agrees to: (i) make and keep public of material information availablethat is not ripe for disclosure in a registration statement or prospectus, as those terms are understood and defined determined in Rule 144, until good faith by the earlier Chief Executive Officer or the Board of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required Directors of the Company under or that disclosure of such information in the Exchange Act; and (iii) furnish Registration Statement or the prospectus constituting a part thereof would be detrimental to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy business and affairs of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.; or
Appears in 1 contract
Samples: Registration Rights Agreement (Biophan Technologies Inc)
Registration Procedures and Expenses. The Company shall: ------------------------------------
(a) The Company shall promptly prepare and file with the SEC, within 90 days after Commission a Registration Statement with respect to the Closing Date, a registration statement on Form S-3 (the "Registration Statement"), to enable the resale of the Shares by the Investors from time to time on a national securities exchange or in privately-negotiated transactions;
(b) Registrable Securities and use its reasonable best efforts, subject to receipt of necessary information from the Investors, efforts to cause the such Registration Statement to become effective as soon as practicable, practicable after such filing (but in no event later than 150 days after the Closing Date;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus used in connection therewith as may be necessary to Effectiveness Deadline). The Company shall keep the Registration Statement current and effective for a period not exceeding, with respect pursuant to the Investor's Shares purchased hereunder, Rule 415 at all times until the earlier of (i) the second anniversary date as of which the Investor may sell all of the Closing Date, Registrable Securities covered by such Registration Statement without restriction or limitation pursuant to Rule 144 and without the requirement to be in compliance with Rule 144(c)(1) (or any successor thereto) promulgated under the 1933 Act; or (ii) the date on which the Investor may shall have sold all of the Registrable Securities covered by such Registration Statement (the "Registration Period"). For the avoidance of doubt, so long as the Warrants have not actually been sold under a Registration Statement or pursuant to Rule 144, the Warrants and the Warrant Shares shall continue to be covered by an effective Registration Statement regardless of the Investor being able to sell all the Warrants without restriction or limitation pursuant to Rule 144 until the Warrant Shares then held themselves cease to be Registrable Securities. Except with respect to information provided by the Investor without restriction by specifically for use in a Registration Statement, the volume limitations Company shall ensure that each Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein (in the case of prospectuses, in the light of the circumstances in which they were made) not misleading.
(b) The Company shall prepare and file with the Commission such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 144(e) of 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period.
(c) The Company shall (A) permit counsel selected by the Investor to review and comment upon (i) a Registration Statement at least five (5) Business Days prior to its filing with the Commission and (ii) all amendments and supplements to all Registration Statements (except for Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and any similar or successor reports) within a reasonable number of days prior to their filing with the Commission, and (iiiB) not file any Registration Statement or amendment or supplement thereto in a form to which such time as all Shares purchased by counsel reasonably objects. The Company shall furnish to such Investor counsel copies of any correspondence from the Commission or the staff of the Commission to the Company or its representatives relating to any Registration Statement and shall reasonably cooperate with such counsel in this Offering have been sold performing the Company's obligations pursuant to a registration statement;this Section 7.
(d) The Company shall furnish to the Investor Investor, without charge, (i) promptly after the same is prepared and filed with respect to the Shares registered under the Commission, at least one copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, if requested by the Investor, all exhibits and each preliminary prospectus, (ii) upon the effectiveness of any Registration Statement, as many copies of the prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request) as the Investor may reasonably request and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the public sale or other disposition of all or any the Registrable Securities.
(e) The Company shall use its reasonable best efforts to (i) register and qualify, unless an exemption from registration and qualification applies, the resale by the Investor of the Shares Registrable Securities covered by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply with the applicable provisions of the Securities Act and of a Registration Statement under such other securities or "blue sky sky" laws of all applicable jurisdictions in the United States, (ii) prepare and file in those jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be applicable necessary to maintain the effectiveness thereof during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in connection with any use of effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 7(e), (y) subject itself to general taxation in any such jurisdiction, or (z) file a general consent to service of process in any such jurisdiction. The Company shall promptly notify counsel for the Investor of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or "blue sky" laws of any jurisdiction in which it is not now so qualified the United States or has not so consented;its receipt of actual notice of the initiation or threatening of any proceeding for such purpose.
(f) The Company shall notify counsel for the Investor in writing of the happening of any event, as promptly as practicable after becoming aware of such event, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (provided that in no event shall such notice contain any material, nonpublic information), and, subject to Section 7(j), promptly prepare a supplement or amendment to such Registration Statement to correct such untrue statement or omission, and deliver as many copies of such supplement or amendment to such counsel and the Investor as the Investor may reasonably request. The Company shall also promptly notify counsel and the Investor in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to counsel and the Investor by facsimile or electronic mail on the same day of such effectiveness and by overnight mail), (ii) of any request by the Commission for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate. By 9:30 a.m. New York City time on the date following the date any post-effective amendment has become effective, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement.
(g) The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify counsel and the Investor of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
(h) The Company shall use its reasonable best efforts either to (i) cause all of the Registrable Securities covered by a Registration Statement to be listed on each securities exchange on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or (ii) secure the inclusion for quotation of all of the Registrable Securities on the OTC Bulletin Board or another eligible market. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(h).
(i) If requested by the Investor, the Company shall as soon as practicable (i) incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) supplement or make amendments to any Registration Statement if reasonably requested by an Investor holding any Registrable Securities.
(j) Notwithstanding anything to the contrary herein, the Company may delay the disclosure of material, non-public information concerning the Company, the disclosure of which at the time would, in the good faith opinion of the Board of Directors of the Company, (x) materially impede, delay or interfere with any material pending or proposed financing, acquisition, corporate reorganization or otherwise similar transaction involving the Company for which the Board of Directors of the Company has authorized negotiations, (y) materially and adversely impair the consummation of any pending or proposed material offering or sale of any class of securities by the Company, or (z) be materially harmful to the interests of the Company and its stockholders; provided, that during any such period all executive officers and directors of the Company are also prohibited from selling securities of the Company (or any security of any of the Company’s subsidiaries or affiliates) (a "Grace Period"); provided, that the Company shall promptly (i) notify the Investor in writing of the existence of material, non-public information giving rise to a Grace Period and the date on which the Grace Period will begin, and (ii) notify the Investor in writing of the date on which the Grace Period ends; and, provided further, that (A) no Grace Period shall exceed twenty (20) consecutive days, (B) during any three hundred sixty five (365) day period such Grace Periods shall not exceed an aggregate of forty-five (45) days and the Company shall not invoke more than three (3) Grace Periods, and (C) the first day of any Grace Period must be at least three (3) Trading Days after the last day of any prior Grace Period (each, an "Allowable Grace Period"). For purposes of determining the length of a Grace Period above, the Grace Period shall begin on and include the date the Investor receives the notice of the beginning of the Grace Period and shall end on and include the later of the date the Investor receives the notice referred to in clause (ii) above and the date referred to in such notice.
(k) The Company shall bear all expenses in connection with the procedures in paragraph (a) through (ek) of this Section 7.1 7.2 and the registration of the Shares Registrable Securities pursuant to the Registration Statement; and
(g) advise , other than fees and expenses of counsel or other advisers to the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issuedInvestor.
(hl) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Samples: Securities Purchase Agreement (Milestone Scientific Inc.)
Registration Procedures and Expenses. The Company Companies shall: ------------------------------------:
(a) within 45 days after the Closing, prepare and file with the SECCommission a Resale Registration Statement (as defined below) covering the resale by LBI, from time to time, of a number of Shares equal to the number of Purchase Shares in any of the manners specified in the Agreement (the "Initial Resale Registration Statement") and use its best efforts to obtain effectiveness of the Initial Resale Registration Statement within 90 days after the Closing Date, a registration statement on Form S-3 (. If the "total number of Shares exceeds the number of Shares covered by the Initial Resale Registration Statement"), to enable then the resale of the Shares by the Investors from time to time on a national securities exchange or in privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 days after the Closing Date;
(c) use its reasonable best efforts to Companies shall promptly prepare and file with the SEC Commission such additional Resale Registration Statement or Statements as shall be necessary to cover the resale by LBI of such excess Shares in the same manner as contemplated by the Initial Registration Statement for the Shares covered thereby (each, an "Additional Resale Registration Statement"); provided that, except as provided for in Section 5 of the Agreement, prior to issuing any such excess Shares to LBI, the Companies shall cause such Resale Registration Statement to have become effective. For purposes of this Purchase Agreement, "Resale Registration Statement" means the Initial Resale Registration Statement, any Additional Resale Registration Statement or any other registration statement under the Securities Act on Form S-3 covering the resale by LBI of up to a specified number of Shares, filed and maintained continuously effective by the Companies pursuant to the provisions of this Section 7, including the prospectus contained therein (the "Resale Prospectus"), any amendments and supplements to the Registration Statement such registration statement, including all post-effective amendments thereto, and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement current all exhibits and effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held material incorporated by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) reference into such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Samples: Purchase Agreement (Starwood Hotel & Resorts Worldwide Inc)
Registration Procedures and Expenses. The Company shall: ------------------------------------As to any shares of the Restricted Stock that are subject to a Registration Notice under the Demand Rights and as to which ASI does not exercise the Option provided for in Section 7, ASI will:
(a) as expeditiously as is reasonably practicable after the expiration of the period within which ASI may exercise the Option, prepare and file with the SEC, within 90 days after the Closing DateCommission, a registration statement on Form S-3 (the "Registration Statement"), with respect to enable the resale of the Shares by the Investors from time such securities and use its best efforts to time on a national securities exchange or in privately-negotiated transactionscause such registration statement to become effective and to remain effective for 90 days;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon expeditiously as is reasonably practicable, but in no event later than 150 days after the Closing Date;
(c) use its reasonable best efforts to prepare and file with the SEC Commission such amendments and supplements to the Registration Statement such registration statement and the Prospectus prospectus used in connection therewith with such registration statement as may be necessary to keep the Registration Statement current and such registration statement effective for a the period not exceeding, specified in paragraph (a) above and to comply with the provisions of the Securities Act with respect to the Investor's Shares purchased hereunder, the earlier disposition of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased Restricted Stock covered by such Investor registration statement in this Offering have been sold pursuant to a accordance with the Shareholder's intended method of disposition set forth in such registration statementstatement for such period;
(dc) as expeditiously as is reasonably practicable, furnish to the Investor with respect Shareholder and to the Shares registered under the Registration Statement each underwriter such number of copies of the Registration Statement, Prospectuses registration statement and Preliminary Prospectuses the prospectus included in conformity with the requirements of the Securities Act and registration statement (including each preliminary prospectus) as such other documents as the Investor persons may reasonably request, request in order to facilitate the public sale or other disposition of the Restricted Stock covered by such registration statement;
(d) use its best efforts to register or qualify the Restricted Stock covered by such registration statement under the securities or blue sky laws of such jurisdictions as the Shareholder or, in the case of an underwritten public offering, the managing underwriter, reasonably request, if such registrations are required by law;
(e) immediately notify the Shareholder and each underwriter, at any time when a prospectus relating to such registration statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus contained in such 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 in such prospectus or necessary to make the statements in such prospectus not misleading in the light of the circumstances then existing;
(f) use its best efforts (if the offering is underwritten) to furnish, at the request of the Shareholder on the date that the Restricted Stock is delivered to the underwriters for sale pursuant to such registration: (i) an opinion dated such date of counsel representing ASI for the purposes of such registration, addressed to the underwriters and to the Shareholder stating that such registration statement has become effective under the Securities Act and that (A) to the best knowledge of such counsel, no stop order suspending the effectiveness of such registration statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (B) the registration statement, the related prospectus, and each amendment or supplement of each of them, comply as to form in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission under the Securities Act (except that such counsel need express no opinion as to financial statements and other financial and statistical data contained in each of them) and (C) to such other effects as may reasonably be requested by counsel for the underwriters or by the Shareholder or its counsel, and (ii) a letter dated such date from the independent public accountants retained by ASI, addressed to the underwriters and to the Shareholder, stating that they are independent public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the financial statements of ASI included in the registration statement or the prospectus, or any amendment or supplement of such statement or prospectus, comply as to form in all material respects with the applicable accounting requirements of the Shares Securities Act, and such letter will additionally cover such other financial matters with respect to the registration in respect of which such letter is being given as such underwriters may reasonably request;
(g) as expeditiously as is reasonably practicable, make available for inspection by the InvestorShareholder, and any attorney, accountant or other agent retained by the Shareholder, all financial and other records, pertinent corporate documents and properties of ASI, and cause ASI's officers, directors and employees to supply all information reasonably requested by the Shareholder or any such attor- ney, accountant or agent in connection with such registra- tion statement;
(h) as expeditiously as is reasonably practicable, cause all the Restricted Stock covered by the registration statement to be listed on each securities exchange on which similar securities of ASI are then listed; and
(i) provide a transfer agent and registrar for all the Restricted Stock covered by the registration statement not later than the effective date of such registration statement. The provisions of Section 8(a) through (i) will also apply to all shares of the Restricted Stock that are subject to a Registration Notice under the Incidental Rights and as to which ASI does not exercise the Option provided for in Section 7, except that ASI will be entitled to control the timing of the registration process in all respects and may withdraw or terminate any such registration at any time. In connection with each registration under this Agreement, the Shareholder will furnish to ASI in writing such information with respect to himself and the proposed distribution by him as will be reasonably necessary in order to assure compliance with federal and applicable state securities laws. In connection with each registration pursuant to Sections 5 or 6 covering an underwritten public offering, ASI and the Shareholder will enter into a written agreement with the managing underwriter selected in the manner provided above in such form and containing such provisions as are customary in the securities business for such an arrangement between major underwriters and companies of ASI's size and investment stature; provided, however, that such agreement will not contain any such provision applicable to ASI or the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply Shareholder which is inconsistent with the applicable provisions of the Securities Act this Agreement and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, howeverfurther, that the Company shall not time and place of the closing under said agreement will be required to 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;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 as mutually agreed upon among ASI, such managing underwriter and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issuedShareholder.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Samples: Registration Rights Agreement (Analytical Surveys Inc)
Registration Procedures and Expenses. The Company shall: ------------------------------------Purchaser is obligated to do the following:
(a) Within sixty (60) days following the Closing Date, prepare and file with the SEC, within 90 days after the Closing Date, SEC a registration statement on Form S-3 (in order to register with the "Registration Statement"), SEC under the Securities Act a sale by the Holders on a delayed or continuous basis pursuant to enable Rule 415 under the resale Securities Act of any or all of the Shares by Registrable Purchaser Common Stock through the Investors from time to time on a automated quotation system of the Nasdaq National Market System or the facilities of any national securities exchange on which the Purchaser's Common Stock is then traded, or in privately-negotiated transactionstransactions (a "Registration Statement") (notwithstanding anything to the contrary expressed or implied herein, if a registration statement on Form S-3, or any substitute form, is not then available for registration of the Registrable Purchaser Common Stock, the Purchaser shall be obligated instead to prepare and file with the SEC a registration statement on Form S-1 in order to register the Registrable Purchaser Common Stock under the Securities Act and such registration statement will be a "Registration Statement" for the purposes of this Agreement);
(b) prior to and following the Closing Date, use its reasonable best efforts, subject to receipt of necessary information from the InvestorsHolders, to cause the such Registration Statement to become effective as soon promptly after filing as practicablepracticable and, but in no event later than 150 days after any event, within 48 hours of notice of non-review or clearance of the Closing DateRegistration Statement by the SEC and to maintain the effectiveness of the Registration Statement until termination of such obligation as provided in Section 12.7 below;
(c) use its reasonable best efforts notify the Holders, at any time when a prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in or relating to such Registration Statement contains an untrue statement of a material fact or omits to state any fact necessary to make the statements therein not misleading;
(d) prepare and file with the SEC such amendments and supplements to the such Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the such Registration Statement current and effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, the earlier until termination of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time obligation as all Shares purchased by such Investor provided in this Offering have been sold pursuant to a registration statementSection 12.7 below;
(de) furnish to the Investor with respect to the Shares registered under the Registration Statement Holders such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents prospectuses as the Investor they may reasonably request, request in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.the
Appears in 1 contract
Samples: Asset Purchase Agreement (Asyst Technologies Inc /Ca/)
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) subject to receipt of necessary information in writing from the Purchasers, as soon as reasonably practicable, but in no event later than thirty (30) days following the Closing Date (the “Filing Date”), prepare and file with the SEC, within 90 days after Commission the Closing Date, a registration statement Registration Statement on Form S-3 or other available form relating to the sale or other transfer of Common Stock (including Underlying Shares) issued or issuable to the "Registration Statement")Purchaser and the Other Purchasers pursuant to the Agreements and the Warrants (collectively, to enable the resale of the Shares by the Investors “Registrable Securities”) from time to time on a the Nasdaq National Market or the facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions; provided, however, that, if the Company shall have received a request in writing from a Purchaser within ten (10) days of the Closing and if, at the time of receiving such request, the Company shall not have filed such Registration Statement with the Commission, the Company shall provide such Purchaser a reasonable opportunity, but not longer than two (2) business days, to review and provide comments with respect to the “Plan of Distribution” of the Registration Statement and any information regarding such Purchaser to be included in such Registration Statement;
(b) use its commercially reasonable best efforts, subject to receipt of necessary information from the InvestorsPurchasers, to cause the Commission to declare the Registration Statement to become effective as soon as practicablewithin ninety (90) calendar days after the Closing Date (such date, but in no event later than 150 the “Required Effective Date”); provided, however, that, if the Registration Statement receives Commission review, then the Required Effective Date shall be one hundred twenty (120) calendar days after the Closing Date;
(c) use its reasonable best reasonably commercial efforts to promptly prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceedingeffective, with respect subject to receipt of necessary information from the Investor's Shares purchased hereunderPurchasers, until the earlier earliest of (i) two years after the second anniversary expiration of the Closing DateWarrants, (ii) such time as the date on which the Investor may sell all Shares then held Registrable Securities become eligible for resale by the Investor without restriction by the volume limitations of non-affiliates pursuant to Rule 144(e144(k) of under the Securities Act, Act or (iii) such time as all Shares Registrable Securities purchased by such Investor the Purchaser and all Other Purchasers under the Agreements and the Warrants and included in this Offering the Registration Statement have been sold to the public. Thereafter, the Company shall be entitled to file a post-effective amendment to de-register the shares not otherwise sold under the Registration Statement and the Purchasers shall have no further right to offer or sell any of the Registrable Securities pursuant to a registration statementthe Registration Statement;
(d) furnish to the Investor Purchaser with respect to the Shares Registrable Securities registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act prospectuses and such other documents documents, in each case as the Investor Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares Registrable Securities by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary ProspectusesPurchaser;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, Purchaser and reasonably acceptable to the Company; provided, however, that the Company shall not be required to to: (i) qualify to do business or where it would not otherwise be required to qualify but for this Section 7.1; (ii) file a general consent to service of process in any jurisdiction such jurisdiction; (iii) subject itself to taxation in any such jurisdiction; (iv) provide any undertakings that cause material expense or burden to the Company; or (v) make any change to its organizational documents, which it is not now so qualified or has not so consentedin each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders;
(f) bear all expenses in connection with the procedures in paragraph paragraphs (a) through (e) of this Section 7.1 and the registration of the Shares Registrable Securities pursuant to the Registration Statement, other than fees and expenses, if any, of counsel or other advisers to the Purchaser or the Other Purchasers or discounts, brokerage fees and commissions incurred by the Purchaser or the Other Purchasers, if any; and
(g) advise notify promptly the Investors promptly after it shall receive notice or obtain knowledge Purchaser of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or and any post-effective amendments thereto. Notwithstanding the foregoing, if the information provided by the Purchaser pursuant to Appendix I to this Agreement shall not be sufficient for purposes of effecting the registration of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should Registrable Securities, it shall be issued.
(h) With a view to making available condition precedent to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required obligations of the Company under to take any action pursuant to paragraphs (a) through (g) of this Section 7.1, that the Exchange Act; and (iii) Purchaser shall furnish to the Investor upon requestCompany such information regarding itself, as long as the Investor owns any Shares, (A) a written statement Registrable Securities to be sold or transferred by the Company that it has complied with Purchaser, and the reporting requirements intended method of disposition of such Registrable Securities as shall be required to effect the registration of the Exchange ActRegistrable Securities, (B) a copy all of which information shall be furnished to the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-QCompany in writing specifically for use in the Registration Statement. Notwithstanding the foregoing, the parties understand and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands agree that the Investor disclaims being an underwriter, but the Investor being deemed Company shall not be obligated to retain an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request with respect to the SEC shall be extended offer and sale of Registrable Securities pursuant to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECStatement.
Appears in 1 contract
Samples: Purchase Agreement (Digimarc Corp)
Registration Procedures and Expenses. The Company If and whenever LifeQuest is required to include the Merger Consideration in a registration statement under the Securities Act, as provided in Section 11.4 hereof, LifeQuest shall: ------------------------------------, as expeditiously as is reasonably practicable, do each of the following:
(ai) prepare and file with the SEC, within 90 days after the Closing Date, SEC a registration statement on Form S-3 (with respect to the "Registration Statement")Merger Consideration and, subject to enable the resale of the Shares by the Investors from time limitations under Section 11.4 hereof, use its best efforts to time on a national securities exchange or in privately-negotiated transactionscause such registration statement to become effective;
(bii) use its reasonable best efforts, subject to receipt cooperate with the Shareholder and any underwriter who shall sell the Merger Consideration in connection with their review of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but LifeQuest made in no event later than 150 days after the Closing Dateconnection with such registration;
(ciii) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement such registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the Registration Statement current and such registration statement effective for a period not exceeding120 days from the date of its effectiveness, and to comply with the provisions of the Securities Act and the Exchange Act with respect to the Investor's Shares purchased hereunder, disposition of all the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased Merger Consideration covered by such Investor in this Offering have been sold pursuant to a registration statementstatement for such period;
(div) furnish to the Investor with respect to the Shares registered under the Registration Statement Shareholder such number of copies of the Registration Statementprospectus forming a part of such registration statement (including each preliminary prospectus), Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act Act, and such other documents as the Investor Shareholder may reasonably request, request in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration StatementMerger Consideration; and
(gv) advise LifeQuest shall (a) notify the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may Shareholder at any time permit the Investor to sell Shares when a prospectus relating to the public without registrationMerger Consideration is required to be delivered under the Securities Act, of the Company covenants and agrees to: (i) make and keep public information availablehappening of any event as a result of which the prospectus forming a part of such registration statement, as those terms are understood and defined then in Rule 144effect, until 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 earlier of (A) such date as all statements therein not misleading in the light of the Investor's Shares may be resold pursuant to Rule 144(kcircumstances then existing, and (b) or any other rule of similar effect or (B) such date as all at the request of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports Shareholder, prepare and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon requestShareholder a reasonable number of copies of any supplement to or any amendment of such prospectus that may be necessary so that, as long as thereafter delivered to the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements purchasers of the Exchange ActMerger Consideration, (B) such prospectus shall not include any untrue statement of a copy material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, circumstances then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECexisting.
Appears in 1 contract
Samples: Plan of Merger and Acquisition Agreement (Lifequest Medical Inc)
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) use all commercially reasonable efforts, subject to receipt of necessary information from the Purchasers, to prepare and file with the SEC, SEC within 90 ten (10) days after following the Closing Date (the “Filing Date, a registration statement ”) the Registration Statement on Form S-3 (relating to the "Registration Statement"), to enable the resale sale of the Shares by the Investors Purchaser from time to time on a through the Nasdaq Stock Market or the facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions;
(b) use its all commercially reasonable best efforts, subject to receipt of necessary information from the Investors, efforts to cause the Registration Statement to become effective as soon promptly after filing as practicable, but in no event later than 150 days after the Closing Datepossible;
(c) use its reasonable best efforts to prepare and file with the SEC (and promptly notify the Purchaser of such filing) such amendments and supplements to the Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, until the earlier of (i) twenty-four months after the second anniversary effective date of the Closing DateRegistration Statement, (ii) the date on which the Investor Shares may sell all Shares then held be resold by the Investor Purchasers without restriction registration by the volume limitations reason of Rule 144(e144(k) of under the Securities ActAct or any other rule of similar effect, or (iii) such time as the re-sale of all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statementof the shares of Common Stock under the Agreements;
(d) furnish to the Investor Purchaser with respect to the Shares registered under the Registration Statement (and to each underwriter, if any, of such Shares) such reasonable number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act prospectuses and such other documents as the Investor Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary ProspectusesPurchaser;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, Purchaser; provided, however, that the Company shall not be required to 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
(f) advise each Purchaser promptly:
(i) of any request by the SEC for amendments to the Registration Statement or amendments to the prospectus or for additional information relating thereto;
(fii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the purposes; and
(iii) of the existence of any fact and the happening of any event that makes any statement of a material fact made in the Registration Statement, the prospectus and amendment or supplement thereto, or any document incorporated by reference therein, untrue, or that requires the making of any additions to or changes in the Registration Statement or the prospectus in order to make the statements therein, in the light of the circumstances in which they were made, not misleading; and
(g) bear all expenses in connection with the procedures in paragraph paragraphs (a) through (ef) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise , other than fees and expenses, if any, of counsel or other advisers to the Investors promptly after it shall receive notice Purchaser or obtain knowledge of the issuance of any stop order Other Purchasers or underwriting discounts, brokerage fees and commissions incurred by the SEC delaying Purchaser or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment Other Purchasers, if such stop order should be issuedany.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Mobility Electronics Inc)
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) prepare and file a Resale Registration Statement (the “Mandatory Registration Statement”) with the SECCommission as soon as practicable but in no event later than 10 days following the filing of the Company’s Annual Report on Form 10-K for the year ended December 31, within 90 days after 2022 (but in any event, no later than April 10, 2023) (the Closing “Filing Date, a registration statement ”) to register on Form S-3 all of the Registrable Shares then issued or issuable upon conversion (including Registrable Shares issuable at the "Registration Statement"Second Closing) under the Securities Act (providing for shelf registration of such Registrable Shares under Commission Rule 415). In the event that Form S-3 is not available for the registration of the Registrable Shares, to enable the Company shall register the resale of the Registrable Shares by on such other form as is available to the Investors from time to time on a national securities exchange or in privately-negotiated transactionsCompany;
(b) use its commercially reasonable best efforts, subject to receipt of necessary information from the Investors, efforts to cause the Mandatory Registration Statement to become be declared effective as soon as practicablepracticable and in any event within 30 days following the Filing Date (or, but in the event the Staff reviews and has written comments to the Mandatory Registration Statement, within 90 days following the Filing Date) (the earlier of the foregoing or the applicable date set forth in Section 4.2(h), the “Effectiveness Deadline”), such efforts to include, without limiting the generality of the foregoing, preparing and filing with the Commission any financial statements or other information that is required to be filed prior to the effectiveness of the Mandatory Registration Statement; provided however that, notwithstanding anything herein to the contrary, in no event shall the Effectiveness Deadline be of a date that is prior to five (5) days following the earlier of the filing of the Company’s definitive proxy statement related to its the Company’s 2023 Annual Meeting of Stockholders or filing of Part III information in the Company’s Annual Report on Form 10-K for fiscal 2022 (but in any event, no later than 150 days after the Closing DateApril 30, 2023);
(c) not less than five (5) Trading Days prior to the filing of a Registration Statement or any related prospectus or any amendment or supplement thereto, furnish via email to those Purchasers who have supplied the Company with email addresses copies of all such documents proposed to be filed, which documents (other than any document that is incorporated or deemed to be incorporated by reference therein) will be subject to the review of such Purchasers. The Company shall reflect in each such document when so filed with the Commission such comments regarding the Purchasers and the plan of distribution as the Purchasers may reasonably and promptly propose no later than three (3) Trading Days after the Purchasers have been so furnished with copies of such documents as aforesaid.
(d) use its commercially reasonable best efforts to cause any such Additional Registration Statement to be declared effective as promptly as practicable following the Additional Filing Date, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the Commission any financial statements or other information that is required to be filed prior to the effectiveness of any such Additional Registration Statement;
(e) promptly prepare and file with the SEC Commission such amendments and supplements to the such Resale Registration Statement Statements and the Prospectus prospectus used in connection therewith as may be necessary to keep the such Resale Registration Statement current Statements continuously effective and effective for free from any material misstatement or omission to state a period not exceedingmaterial fact therein until termination of such obligation as provided in Section 4.7 below, with respect subject to the Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold Company’s right to suspend pursuant to a registration statementSection 4.6;
(df) furnish to the Investor with respect to the Shares registered under the Registration Statement Purchasers such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor Purchasers may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply with the applicable provisions of the Securities Act and of Purchasers;
(g) file such other securities or blue sky laws documents as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal securities law clearance for the resale of the Registrable Shares in such states of the United States as may be reasonably requested by the Purchasers and use its commercially reasonable efforts to maintain such blue sky clearance in states specified in writing by qualifications during the Investor, period the Company is required to maintain effectiveness of the Resale Registration Statements; provided, however, that the Company shall not be required in connection with this Section 4.2(g) to qualify to do business as a foreign corporation or execute a general consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(fh) upon notification by the Commission that the Resale Registration Statement will not be reviewed or is not subject to further review by the Commission, the Company shall within two Trading Days following the date of such notification request acceleration of such Resale Registration Statement (with the requested effectiveness date to be not more than two Trading Days later);
(i) upon notification by the Commission that that the Resale Registration Statement has been declared effective by the Commission, the Company shall file the final prospectus under Rule 424 of the Securities Act (“Rule 424”) within the applicable time period prescribed by Rule 424;
(j) advise the Purchasers promptly (and in any event within two (2) Trading Days thereof):
(i) of the effectiveness of the Resale Registration Statement or any post-effective amendments thereto;
(ii) of any request by the Commission for amendments to the Resale Registration Statement or amendments to the prospectus or for additional information relating thereto;
(iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Resale Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Registrable Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes; and
(iv) of the existence of any fact and the happening of any event that makes any statement of a material fact made in the Resale Registration Statement, the prospectus and amendment or supplement thereto, or any document incorporated by reference therein, untrue, or that requires the making of any additions to or changes in the Resale Registration Statement or the prospectus in order to make the statements therein not misleading;
(k) cause all Registrable Shares to be listed on each securities exchange, if any, on which equity securities by the Company are then listed;
(l) bear all expenses in connection with the procedures in paragraph (aparagraphs (a) through (el) of this Section 7.1 4.2 and the registration of the Registrable Shares pursuant to on such Resale Registration Statement and the Registration Statementsatisfaction of the blue sky laws of such states; and
(gm) advise not, from the Investors promptly after it shall receive notice or obtain knowledge date hereof until the effective date of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Mandatory Registration Statement or of the initiation of any proceeding for that purpose; Statement, prepare and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in Commission a timely manner all reports and other documents required registration statement relating to an offering for its own account or the account of the Company others under the Exchange Act; and Securities Act of any of its equity securities, other than any registration statement or post-effective amendment to a registration statement (iiior supplement thereto) furnish related to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report ’s employee benefit plans registered on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECS-8).
Appears in 1 contract
Registration Procedures and Expenses. The In connection with any registration of Registrable Shares under this Section 2, the Company shall: ------------------------------------,
(a) promptly notify Holder, at any time when a prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in or relating to such Registration Statement contains an Untrue Statement;
(b) promptly prepare and file with the SECCommission, within 90 days after the Closing Dateand deliver to Holder, a registration statement on Form S-3 (the "Registration Statement"), to enable the resale of the Shares by the Investors from time to time on a national securities exchange or in privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 days after the Closing Date;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the such Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the such Registration Statement current effective and effective for a period not exceeding, to comply with the provisions of the Securities Act with respect to the Investor's sale or other disposition of all Registrable Shares purchased hereunder, the earlier until termination of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time obligation as all Shares purchased by such Investor provided in this Offering have been sold pursuant to a registration statement;Section 2.7 below; Registration Rights Agreement
(dc) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies Holder a copy of the Registration Statementprospectus, Prospectuses and Preliminary Prospectuses including preliminary prospectus, in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably requestAct, in order to facilitate the public sale or other disposition of all or any of the Registrable Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply with the applicable provisions of the Securities Act and of Holder;
(d) file such other securities or blue sky laws documents as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky securities law clearance for the resale of the Registrable Shares in states specified in writing any state reasonably requested by the Investor, Holder provided, however, that the Company shall not be required in connection with this paragraph (d) to (i) qualify as a foreign corporation to do business under the laws of any jurisdiction in which it shall not then be qualified or execute a general consent to service of process in any jurisdiction or (ii) undertake any filing obligations in those states where the Company does not currently meet such filing requirements;
(e) use its best efforts to cause all Registrable Shares to be listed on each securities exchange, quotation system, and market on which it is not now so qualified equity securities by the Company are then listed or has not so consentedtraded;
(f) bear all expenses in connection with this Agreement, including, without limitation, all registration and filing fees (including all expenses incident to filing with the procedures in paragraph NASD), printing expenses, fees and disbursements of counsel for company, expenses of any special audits incident to or required by any such registration and expenses of complying with the securities or blue sky laws of any jurisdiction, other than (ai) through fees and expenses, if any, of counsel or other advisors to Holder and (eii) of this Section 7.1 brokers commissions, discounts or fees and the registration of the Shares pursuant to the Registration Statementtransfer taxes; and
(g) advise take all reasonable actions required to prevent the Investors promptly after it shall receive notice or obtain knowledge of the issuance entry of any stop order issued or threatened by the SEC delaying Commission or suspending the effectiveness of the any state regulatory authority with respect to any Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any covering Registrable Shares, (A) a written statement by the Company that and take all reasonable actions to remove it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECentered.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) as soon as reasonably practicable, but in no event later than thirty (30) days following the Closing Date, prepare and file with the SEC, within 90 days after Commission the Closing Date, a registration statement Registration Statement on Form S-3 (relating to the "Registration Statement"), to enable the resale sale of the Shares by the Investors Purchaser and the Other Purchasers from time to time on a the American Stock Exchange or the facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the InvestorsPurchasers and notwithstanding the liquidated damages provision of this paragraph, to cause the Commission to declare the Registration Statement to become effective as soon as practicable, but in no event later than 150 by the date which is 120 days after the Closing Date (the “Effectiveness Target Date;”). If the Commission does not declare the Registration Statement effective by the Effectiveness Target Date, the Company shall become obligated to pay to each “Holder” (defined in Section 7.2(b)) an amount in cash, as liquidated damages and not as a penalty, equivalent to 1% of the aggregate purchase price paid by such Holder for any Shares then held by such Holder for each full month that effectiveness is delayed beyond the Effectiveness Target Date (pro-rated on a daily basis for partial months). The Company shall pay in full any liquidated damages pursuant to this Section 7.1(b) within 30 days after the date on which the Company becomes obligated to pay such damages.
(c) use its reasonable best efforts to promptly prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to until the Investor's Shares purchased hereunder, the earlier earliest of (i) two years after the second anniversary effective date of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities ActRegistration Statement, or (iiiii) such time as all the Shares purchased become eligible for resale by such Investor in this Offering have been sold non-affiliates pursuant to a registration statementRule 144(k) under the Securities Act of 1933, as amended;
(d) furnish to the Investor Purchaser with respect to the Shares registered under the Registration Statement (and to each underwriter, if any, of such Shares) such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act prospectuses and such other documents as the Investor Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary ProspectusesPurchaser;
(e) file documents required of the Company for normal blue sky Blue Sky clearance in states specified in writing by the Investor, Purchaser; provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph paragraphs (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement, other than fees and expenses, if any, of counsel or other advisers to the Purchaser or the Other Purchasers or underwriting discounts, brokerage fees and commissions incurred by the Purchaser or the Other Purchasers, if any;
(g) file a Form D with respect to the Shares as required under Regulation D and to provide a copy thereof to the Purchaser promptly after filing;
(h) issue a press release describing the transactions contemplated by this Agreement on the Closing Date; and
(gi) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of make available, while the Registration Statement or of the initiation of any proceeding is effective and available for that purpose; and the Company will promptly use resale, its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registrationChief Executive Officer, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-QChief Financial Officer, and (C) such other Chief Operating Officer for questions regarding information as which the Purchaser may be reasonably requested request in order to avail the Investor of fulfill any rule or regulation of the SEC that permits the selling of any such Shares without registrationdue diligence obligation on its part. The Company understands that the Investor Purchaser disclaims being an underwriter, but the Investor Purchaser being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if . A draft of the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing proposed form of the Registration Statement with is included in the SEC.Private Placement Memorandum and a questionnaire related thereto to be completed by the Purchaser is attached hereto as Appendix I.
Appears in 1 contract
Samples: Purchase Agreement (KFX Inc)
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) Subject to receipt of necessary information in writing from the Purchasers, as soon as reasonably practicable, but in no event later than fifteen (15) business days following the Closing Date (the “Filing Date”), prepare and file with the SEC, within 90 days after the Closing Date, Commission a registration statement Registration Statement on Form S-3 (relating to the "Registration Statement"), to enable the resale sale of the Shares and the Warrant Shares by the Investors Purchaser and the Other Purchasers from time to time on a the Nasdaq National Market System or the facilities of any national securities exchange on which the Common Stock is then traded or in privately-privately negotiated transactionstransactions (the “Registration Statement”). If Form S-3 is not available at that time, the Company will file a registration statement on such form as is then available to effect a registration of the Shares and Warrant Shares (together the “Registration Shares”), subject to the consent of a majority of the Purchasers, which consent shall not be unreasonably withheld;
(b) use its reasonable best efforts, subject to receipt of necessary information from the InvestorsPurchasers, to cause the Commission to declare the Registration Statement effective within sixty (60) calendar days after the Closing Date (the “Required Effective Date”). However, so long as the Company filed the Registration Statement by the Filing Date, if the Registration Statement receives Commission review, then the Required Effective Date will be the ninetieth (90th) calendar day after the Closing Date. The Company’s reasonable best efforts will include, but not be limited to, promptly responding to all comments received from the staff of the Commission, in any event within ten days. If the Company receives notification from the Commission that the Registration Statement will receive no action or review from the Commission, then the Company will, subject to its rights under this Agreement, use its reasonable best efforts to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 within five (5) business days after the Closing Datesuch Commission notification;
(c) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Purchasers thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented;
(d) notify the Purchasers of Registrable Securities to be sold and each Purchaser Counsel as promptly as reasonably possible, and (if requested by any such Person) confirm such notice in writing no later than one business day thereafter, of any of the following events: (i) the Commission notifies the Company whether there will be a “review” of any Registration Statement; (ii) the Commission comments in writing on any Registration Statement; (iii) any Registration Statement or any post-effective amendment is declared effective; (iv) the Commission or any other Federal or state governmental authority requests any amendment or supplement to any Registration Statement or Prospectus or requests additional information related thereto;
(e) not less than four business prior to the filing of a Registration Statement or any related Prospectus or any amendment, or not less than two business days or any supplement thereto (including any document that would be incorporated or deemed to be incorporated therein by reference), the Company shall (i) furnish to each Purchaser and a single counsel designated by each of the Purchasers (the “Purchaser Counsel”, and the Purchasers have initially designated Proskauer Rose LLP as Purchaser Counsel) copies of all such documents proposed to be filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such each Purchaser and Purchaser Counsel, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to all reasonable inquiries of Purchaser Counsel. The Company shall not file a Registration Statement or any such Prospectus or any amendments or supplements thereto to which Purchasers holding a majority of the Registrable Securities shall reasonably object in writing.
(f) use its reasonable best efforts to promptly prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the Registration Statement current and continuously effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, until the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor Purchasers may sell all of the Registration Shares then held by the Investor Purchasers, without restriction by the volume limitations of registration, pursuant to Rule 144(e144(k) of the Securities Act, Act or (iiiii) such time as all Registration Shares purchased acquired by such Investor all Purchasers in this the Offering have been sold pursuant to a registration statementRegistration Statement or Rule 144 of the Securities Act. Thereafter, the Company shall be entitled to withdraw the Registration Statement and the Purchasers shall have no further right to offer or sell any of the Registration Shares pursuant to the Registration Statement;
(dg) use its reasonable best efforts to avoid the issuance of or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of any Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, as soon as possible;
(h) promptly furnish to the Investor Purchaser with respect to the Registration Shares registered under the Registration Statement (and to each underwriter, if any, of such Shares) such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act prospectuses and such other documents as the Investor Purchaser may reasonably request, without charge, in order to facilitate the public sale or other disposition of all or any of the Registration Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary ProspectusesPurchaser;
(ei) file documents required of the Company for normal blue sky Blue Sky clearance in states specified in writing by the Investor, Purchaser and reasonably acceptable to the Company; provided, however, that the Company shall not be required to (i) qualify to do business or in any jurisdiction where it would not otherwise be required to qualify but for this Section 7.1; (ii) file a general consent to service of process in any such jurisdiction ; (iii) subject itself in any such jurisdiction to tax upon its income; (iv) provide any undertakings that cause material expense or unreasonable burden to the Company; or (v) make any change to its organizational documents, which it is not now so qualified or has not so consentedin each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders;
(fj) cooperate with the Purchasers to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by this Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Purchasers may request;
(k) upon the occurrence of any event described in Section 7.1(d), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(i) In the time and manner required by each Trading Market, prepare and file with such Trading Market an additional shares listing application covering all of the Registrable Securities; (ii) take all steps necessary to cause such Registrable Securities to be approved for listing on each Trading Market as soon as possible thereafter; (iii) provide to the Purchasers evidence of such listing; and (iv) maintain the listing of such Registrable Securities on each such Trading Market;
(m) bear all expenses in connection with the procedures in paragraph paragraphs (a) through (el) of this Section 7.1 and the registration of the Registration Shares pursuant to the Registration Statement, other than fees and expenses, if any, of counsel or other advisers to the Purchaser or the Other Purchasers or underwriting discounts, brokerage fees and commissions incurred by the Purchaser or the Other Purchasers, if any; and
(gn) advise promptly (and in any event within one business day) notify the Investors promptly after it shall receive notice or obtain knowledge Purchaser of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or (the “Effective Date"), and any post-effective amendments thereto, as well as of the initiation of any proceeding for that purpose; and receipt by the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or orders of the Commission with respect to obtain its withdrawal at the earliest possible moment if Registration Statement and the lifting of any such stop order should be issued.order; and
(ho) With comply with all applicable rules and regulations of the Commission and the Trading Market. Notwithstanding the foregoing, it shall be a view to making available condition precedent to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required obligations of the Company under to take any action pursuant to paragraphs (a) through (o) of this Section 7.1, that the Exchange Act; and (iii) Purchaser shall furnish to the Investor upon requestCompany such information regarding itself, the Registration Shares to be sold by the Purchaser, and the intended method of disposition of such Registration Shares as long as shall be required to effect the Investor owns any registration of the Registration Shares, (A) a written statement by all of which information shall be furnished to the Company that it has complied with in writing specifically for use in the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registrationRegistration Statement. The Company understands that the Investor Purchaser disclaims being an underwriter, but the Investor Purchaser being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC Commission that the Investor Purchaser is deemed an underwriter, then the period by in which the Company is obligated to submit an acceleration request to the SEC Commission shall be extended to the earlier of (i) the 90th ninetieth (90th) day after such SEC Commission notification, or (ii) 150 one hundred twenty (120) days after the initial filing of the Registration Statement with the SECCommission. Notwithstanding the foregoing, the parties understand and agree that the Company shall not be obligated to retain an underwriter with respect to the offer and sale of Shares pursuant to the Registration Statement.
Appears in 1 contract
Registration Procedures and Expenses. The Except for such times as the Company shall: ------------------------------------may be required to suspend the use of a prospectus forming a part of the Registration Statement, the Company will:
(a) as soon as practicable, but in no event later than thirty (30) days following the Closing Date, use commercially reasonable efforts to prepare and file with the SEC, within 90 days after the Closing Date, SEC a registration statement on Form S-3 (the "Registration Statement"), to enable ) covering the resale of the Shares and at least 356,670 Warrant Shares by the Investors from time to time on a national securities exchange or in privately-negotiated transactionsPurchaser and which shall contain the Plan of Distribution as attached hereto as Exhibit D;
(b) use its commercially reasonable best efforts, subject to receipt of necessary information from the Investors, efforts to cause the Registration Statement to become effective as soon as practicable, but in under the Securities Act no event later than 150 sixty (60) days after the Closing Date, if the Registration Statement is not reviewed by the SEC, or no later than one hundred ten (110) days after the Closing Date, if the Registration Statement is reviewed by the SEC;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the Registration Statement current and continuously effective for a period not exceeding, with respect to until the Investor's Shares purchased hereunder, the earlier earliest of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor Purchaser may sell all Shares then held by the Investor Purchaser and all Warrant Shares purchasable by Purchaser without restriction by the volume limitations and without registration by reason of Rule 144(e) 144 or any other rule of the Securities Actsimilar effect, or (iii) such time as all Shares and Warrant Shares purchased by such Investor in this Offering the Purchasers have been sold pursuant to a registration statementsold;
(d) so long as the Registration Statement is effective covering the resale of Shares and Warrant Shares owned by the Purchasers, furnish to the Investor Purchasers with respect to the Shares and Warrant Shares registered under the Registration Statement (and to each underwriter, if any, of such Shares) such reasonable number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act prospectuses and such other documents as the Investor Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares and Warrant Shares by the Investor, Purchasers; provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses prospectuses to the Investor Purchasers shall be subject to the receipt by the Company of reasonable assurances from the Investor Purchasers that the Investor Purchasers 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 such Prospectuses or Preliminary Prospectusesprospectuses;
(e) use commercially reasonable efforts to file documents required of the Company for normal blue sky Blue Sky clearance in states specified in writing by the Investor, Purchasers; provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it the Company is not now so qualified or has not so consented;; and
(f) bear all expenses in connection with the procedures in paragraph paragraphs (a) through (e) of this Section 7.1 6.1 and the registration of the Shares and Warrant Shares pursuant to the Registration Statement; and
(g) advise , other than fees and expenses, if any, of counsel or other advisers to the Investors promptly after it shall receive notice Purchasers or obtain knowledge of the issuance of any stop order underwriting discounts, brokerage fees and commissions incurred by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment Purchasers, if such stop order should be issuedany.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Samples: Stock and Warrant Purchase Agreement (Trimble Navigation LTD /Ca/)
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) subject to receipt of necessary information from the Investors, prepare and file with the SEC, within 90 as soon as practicable, but in no event later than thirty (30) calendar days after the Closing Date, a registration statement on Form S-3 (the "Registration StatementREGISTRATION STATEMENT"), ) to enable the resale of the Common Stock issuable upon conversion of the Shares and the Warrant Shares (collectively, the "REGISTRABLE SECURITIES") by the Investors from time to time on a national securities exchange through the automated quotation system of The Nasdaq Stock Market or in privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 ninety (90) calendar days after the Closing DateRegistration Statement is filed by the Company;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to the each Investor's Shares purchased hereunderRegistrable Securities, the earlier earliest of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares Registrable Securities then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, Act or (iii) such time as all Shares Securities purchased by such Investor in this Offering and all Registrable Securities have been sold pursuant to a registration statementby such Investor;
(d) furnish to the Investor with respect to the Shares Registrable Securities registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses (including supplemental prospectuses) and Preliminary Prospectuses preliminary versions of the Prospectus filed with the SEC ("PRELIMINARY PROSPECTUSES") in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares Registrable Securities by the Investor, provided, however, that unless waived by the Company in writing, the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states reasonably specified in writing by the InvestorInvestor prior to the effectiveness of the Registration Statement, provided, however, that the Company shall not be required to 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;
(f) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph (a) through (e) of this Section 7.1 6.1 and the registration of the Shares Registrable Securities pursuant to the Registration Statement; and
(g) advise the Investors Investors, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company it will promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares Securities and Registrable Securities may be resold pursuant to Rule 144(k144(e) or any other rule of similar effect or (B) such date as all of the Investor's Shares Securities and Registrable Securities shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any SharesSecurities and Registrable Securities, (A) a written statement by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares Securities and Registrable Securities without registration. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 6.1 that the Investor shall furnish to the Company such information regarding itself, the Registrable Securities to be sold by the Investor, and the intended method of disposition of such securities as shall be required to effect the registration of the Shares. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Samples: Preferred Stock and Warrant Purchase Agreement (Novatel Wireless Inc)
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) as soon as reasonably practicable, but in no event later than fifteen (15) business days following the Closing Date (such date, the "Filing Date"), prepare and file with the SEC, within 90 days after Commission the Closing Date, a registration statement Registration Statement on Form S-3 (or other available form relating to the "Registration Statement"), to enable the resale sale of the Shares by the Investors Purchaser and the Other Purchasers from time to time on a the Nasdaq National Market or the facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the InvestorsPurchasers, to cause the Commission to declare the Registration Statement to become effective within 60 days after the Closing Date (such date, the "Required Effective Date"). However, so long as soon as practicablethe Company filed the Registration Statement by the Filing Date, but in no event later than 150 days if the Registration Statement receives Commission review, then the Required Effective Date will be the ninetieth (90th) calendar day after the Closing Date;
(c) use its reasonable best efforts to promptly prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceedingeffective, with respect subject to receipt of necessary information from the Investor's Shares purchased hereunderPurchasers, until the earlier earliest of (i) two years after the second anniversary effective date of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities ActRegistration Statement, or (iiiii) such time as all the Shares purchased become eligible for resale by such Investor in this Offering have been sold non-affiliates pursuant to a registration statementRule 144(k) under the Securities Act of 1933, as amended;
(d) furnish to the Investor Purchaser with respect to the Shares registered under the Registration Statement (and to each underwriter, if any, of such Shares) such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act prospectuses and such other documents as the Investor Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary ProspectusesPurchaser;
(e) file documents required of the Company for normal blue sky Blue Sky clearance in states specified in writing by the InvestorPurchaser; PROVIDED, provided, howeverHOWEVER, that the Company shall not be required to qualify to do business or subject itself to taxation or consent to service of process in any jurisdiction in which it is not now so qualified qualified, so subjected or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph paragraphs (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and, other than fees and expenses, if any, of counsel or other advisers to the Purchaser or the Other Purchasers or underwriting discounts, brokerage fees and commissions incurred by the Purchaser or the Other Purchasers, if any;
(g) advise file a Form D with respect to the Investors Shares as required under Regulation D and to provide a copy thereof to the Purchaser promptly after it shall receive notice or obtain knowledge filing;
(h) issue a press release describing the transactions contemplated by this Agreement on the Closing Date;
(i) notify promptly the Purchaser of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of and any proceeding for that purposepost-effective amendments thereto; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.and
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (ij) make and keep public information available, as those terms are understood while the Registration Statement is effective and defined in Rule 144available for resale, until its Chief Executive Officer and Chief Financial Officer for questions regarding information which the earlier of (A) such date as all of the Investor's Shares Purchaser may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested request in order to avail the Investor of fulfill any rule or regulation of the SEC that permits the selling of any such Shares without registrationdue diligence obligation on its part. The Company understands that the Investor Purchaser disclaims being an underwriter, but the Investor Purchaser being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if . A draft of the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing proposed form of the Registration Statement with is included in the SEC.Private Placement Memorandum and a questionnaire related thereto to be completed by the Purchaser is attached hereto as Appendix I.
Appears in 1 contract
Registration Procedures and Expenses. The Company If and whenever Purchaser is required to include the Stock Consideration in a registration statement under the Securities Act, as provided in Section 11.4 hereof, Purchaser shall: ------------------------------------, as expeditiously as is reasonably practicable, do each of the following:
(ai) prepare and file with the SEC, within 90 days after the Closing Date, SEC a registration statement on Form S-3 (with respect to the "Registration Statement")Stock Consideration and, subject to enable the resale of the Shares by the Investors from time limitations under Section 11.4 hereof, use its best efforts to time on a national securities exchange or in privately-negotiated transactionscause such registration statement to become effective;
(bii) use its reasonable best efforts, subject to receipt cooperate with Sellers and any underwriter who shall sell the Stock Consideration in connection with their review of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but Purchaser made in no event later than 150 days after the Closing Dateconnection with such registration;
(ciii) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement such registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the Registration Statement current and such registration statement effective for a period not exceeding120 days from the date of its effectiveness, and to comply with the provisions of the Securities Act and the Exchange Act with respect to the Investor's Shares purchased hereunder, disposition of all the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased Stock Consideration covered by such Investor in this Offering have been sold pursuant to a registration statementstatement for such period;
(div) furnish to the Investor with respect to the Shares registered under the Registration Statement Sellers such number of copies of the Registration Statementprospectus forming a part of such registration statement (including each preliminary prospectus), Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act Act, and such other documents as the Investor Sellers may reasonably request, request in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration StatementStock Consideration; and
(gv) advise the Investors promptly after it Purchaser shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(hx) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may notify Sellers at any time permit the Investor to sell Shares when a prospectus relating to the public without registrationStock Consideration is required to be delivered under the Securities Act, of the Company covenants and agrees to: (i) make and keep public information availablehappening of any event as a result of which the prospectus forming a part of such registration statement, as those terms are understood and defined then in Rule 144effect, until 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 earlier of (A) such date as all statements therein not misleading in the light of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Qcircumstances then existing, and (Cy) prepare and furnish to Sellers a reasonable number of copies as Sellers may reasonably request of any supplement to or any amendment of such other information as prospectus that may be reasonably requested in order necessary so that, as thereafter delivered to avail the Investor of any rule or regulation purchasers of the SEC that permits the selling of any Stock Consideration such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC prospectus shall not relieve include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the Company of any obligations it has hereunder, provided, however, that if statements therein not misleading in the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing light of the Registration Statement with the SECcircumstances then existing.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) as soon as practicable, but in no event later than thirty (30) days following the Closing Date (the “Filing Deadline”), prepare and file with the SEC, within 90 days after Commission the Closing Date, a registration statement Registration Statement on Form S-3 (the "Registration Statement"), S‑3 relating to enable the resale of the Shares by the Investors Purchaser and the Other Purchasers from time to time on a the facilities of any national securities exchange or over-the-counter market on which the Common Stock is then traded or in privately-negotiated transactions; not less than three (3) business days prior to filing, the -25- Company shall provide the Purchaser an opportunity to review and comment on the disclosure regarding the Purchaser;
(b) use its reasonable best efforts, subject to receipt of necessary information from the InvestorsPurchasers, to cause the Commission to declare the Registration Statement to become effective as soon as practicable, but in no event later than 150 by the earlier of (i) 90 days after the Closing DateDate or, if the Registration Statement is selected for review by the Commission, 120 days after the Closing Date and (ii) the 5th business day after the date the Company is notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be reviewed or will not be subject to further review (such earlier date, the “Effective Deadline”);
(c) use its reasonable best efforts to promptly prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to until the Investor's Shares purchased hereunder, the earlier earliest of (i) two years after the second anniversary effective date of the Closing DateRegistration Statement, (ii) the date on which the Investor may sell such time as all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities ActShares have been sold pursuant to the Registration Statement, or (iii) such time as all the Shares purchased become eligible for resale by such Investor in this Offering have been sold non-affiliates without any volume limitations or other restrictions pursuant to a registration statementRule 144(b)(1)(i) under the Securities Act or any other rule of similar effect, without the requirement for the Company to be in compliance with the current public information requirements under Rule 144(c)(1) (or Rule 144(i)(2), if applicable);
(d) furnish to the Investor Purchaser with respect to the Shares registered under the Registration Statement (and to each underwriter, if any, of such Shares) such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act prospectuses and such other documents as the Investor Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary ProspectusesPurchaser;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph paragraphs (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement, other than fees and expenses, if any, of counsel or other advisers to the Purchaser or the Other Purchasers or underwriting discounts, brokerage fees and commissions incurred by the Purchaser or the Other Purchasers, if any in connection with the offering of the Shares pursuant to the Registration Statement;
(f) file a Form D with respect to the Shares as required under Regulation D and to provide a copy thereof to the Purchaser promptly after filing; and
(g) advise in order to enable the Investors promptly after it shall receive notice or obtain knowledge Purchasers to sell the Shares under Rule 144 to the Securities Act, for a period of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly one year from Closing, use its commercially reasonable efforts to prevent comply with the issuance requirements of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant including without limitation, use its commercially reasonable efforts to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file comply with the SEC in a requirements of Rule 144(c)(1) with respect to public information about the Company and to timely manner file all reports and other documents required of to be filed by the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor Purchaser disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC . The Purchaser shall not relieve be named as an “underwriter” in any Registration Statement without the Company Purchaser’s prior written consent. A draft of any obligations it has hereunder, provided, however, that if the Company receives notification from proposed form of the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated questionnaire related to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with to be completed by the SEC.Purchaser is attached hereto as Appendix I.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------
(a) prepare and file In connection with any registration of Registrable Securities under this Article 8, the SEC, within 90 days after Holders of said Registrable Securities will furnish in writing such information as is reasonably requested by the Closing Date, a Corporation or its underwriter or underwriters for inclusion in the registration statement on Form S-3 (relating to such offering and such other information and documentation as the "Registration Statement"), to enable the resale of the Shares by the Investors from time to time on a national securities exchange Corporation or in privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 days after the Closing Date;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement underwriter or underwriters may reasonably request and the Prospectus used in connection therewith as may be necessary Holders hereby agree to keep the Registration Statement current and effective for a period not exceeding, comply with respect to the Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company laws applicable to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable them in connection with any use the offer, sale, underwriting and distribution of its respective Registrable Securities. The Holders participating in such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, however, that the Company registration shall not be required to qualify make any representations or warranties to do business or consent agreement with the Corporation or the underwriters other than those relating to service of process the Holder, its Registrable Securities and information provided by it in any jurisdiction writing for use in which it is not now so qualified the registration statement. In connection with the registration, the Corporation will, as expeditiously as possible:
(i) take all actions, supply information and use its best efforts to obtain all legal opinions, auditors' consents and comfort letters and experts' computations that may be necessary or has not so consenteddesirable to complete the registration process;
(fii) bear furnish, at the request of the Holders, on the date that all expenses or any part of such Registrable Securities is delivered to the underwriters for sale pursuant to such registration, an opinion dated such date of independent counsel representing the Corporation for the purposes of such registration, addressed to the Holders making such request, with respect to such legal matters relating to the registration in connection with which such opinion is being given in the procedures in paragraph (a) through (e) same form mutatis, mutandis, as the opinion of this Section 7.1 and the registration of the Shares pursuant such counsel given to the Registration Statementunderwriters; and
(giii) advise notify the Investors promptly after it shall receive notice or obtain knowledge Holders of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the issuance happening of any stop order by event as a result of which the SEC delaying prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or suspending omits to state any material fact required to be stated therein or necessary to make the effectiveness statements therein not misleading in the light of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issuedcircumstances then existing.
(hb) With a view to making available All expenses incurred by the Corporation in complying with this Article 8, including, without limitation, all registration and filing fees, printing expenses, fees and disbursements of counsel for the Corporation, auditors' fees and blue sky fees and expenses ("Registration Expenses"), except for all underwriting discounts and selling commissions applicable to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation sales of the SEC that may at Holders' Registrable Securities being included in the subject offering and all fees and disbursements of counsel for the Holders of Registrable Securities (including counsel designated by any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all seller for a "due diligence" investigation of the Investor's Shares may Corporation) shall be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement borne by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECCorporation.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) subject to receipt of necessary information from the Investors, prepare and file with the SEC, within 90 five (5) business days after the Closing Subscription Date, a registration statement on Form S-3 (the "Registration Statement"), Statement to enable the resale of the Shares by the Investors from time to time on a national securities exchange through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 within 90 days after the Closing DateRegistration Statement is filed by the Company;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to the each Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;.
(d) furnish to the Placement Agent and to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors Investors, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation or threat of any proceeding for that purpose; and the Company it will promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, providedPROVIDED, however, HOWEVER that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 120 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Samples: Stock Purchase Agreement (Ariad Pharmaceuticals Inc)
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) as soon as reasonably practicable, but in no event later than ten (10) business days following the Closing Date, prepare and file with the SEC, within 90 days after Commission the Closing Date, a registration statement Registration Statement on Form S-3 (relating to the "Registration Statement"), to enable the resale sale of the Shares by the Investors Purchaser and the Other Purchasers from time to time on a the American Stock Exchange or the facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions;
(b) use its commercially reasonable best efforts, subject to receipt of necessary information from the InvestorsPurchasers, to cause the Registration Statement to become be declared effective as soon as practicable, but in no event later than 150 under the Securities Act within 60 days after the Closing Date if the Registration Statement is not reviewed by the Commission and within 90 days after the Closing Date if the Registration Statement is reviewed by the Commission (each such date, the "Required Effective Date");
(c) use its commercially reasonable best efforts to prepare and file with the SEC Commission such amendments amendments, including post-effective amendments, and supplements to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect as to the Investor's Shares purchased hereunder, until the earlier earliest of (i) two years after the second anniversary effective date of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities ActRegistration Statement, or (iiiii) such time as all the Shares purchased become eligible for resale by such Investor in this Offering have been sold non-affiliates pursuant to a registration statementRule 144(k) under the Securities Act;
(d) furnish to the Investor Purchaser with respect to the Shares registered under the Registration Statement (and to each underwriter, if any, of such Shares) such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act prospectuses and such other documents as the Investor Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary ProspectusesPurchaser;
(e) file documents required of the Company for normal blue sky Blue Sky clearance in states specified in writing by the Investor, Purchaser; provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement, other than fees and expenses, if any, of counsel or other advisers to the Purchaser or the Other Purchasers or underwriting discounts, brokerage fees and commissions incurred by the Purchaser or the Other Purchasers, if any;
(g) file a Form D with respect to the Shares as required under Regulation D and to provide a copy thereof to the Purchaser promptly after filing;
(h) issue a press release describing the transactions contemplated by this Agreement on the Closing Date; and
(gi) advise make available, while the Investors promptly after it shall receive notice Registration Statement is effective and available for resale, one or obtain knowledge more officers of the issuance Company for questions regarding the ability of any stop order by the SEC delaying or suspending the effectiveness of Purchasers to use the Registration Statement or of the initiation of any proceeding for Prospectus; provided however, that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that information may at any time permit the Investor to sell Shares to the not include material, non-public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registrationinformation. The Company understands that the Investor Purchaser disclaims being an underwriter, but the Investor Purchaser being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if . A draft of the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing proposed form of the Registration Statement is included with the SEC.Private Placement Memorandum and a questionnaire related thereto to be completed by the Purchaser is attached hereto as Appendix I.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------
(a) The Company shall prepare and file with the SEC, within 90 days after the Closing Date, Commission a registration statement on Form S-3 meeting the requirements of the Securities Act relating to the sale of the Registrable Securities by the Holders (the "“Registration Statement")”) from time to time. Such Registration Statement (i) shall be a shelf registration statement providing for the registration and the sale of Registrable Securities by the Holders on a continuous or delayed basis pursuant to Rule 415 of the Securities Act, (ii) shall comply as to enable form in all material respects with the requirements of Form S-3 and include all financial statements required by the Commission to be filed therewith or be incorporated therein, (iii) shall be reasonably acceptable to the Investor’s counsel and (iv) shall provide for the resale of the Shares by the Investors Registrable Securities from time to time on a national securities exchange pursuant to any method or in privately-negotiated transactions;combination of methods legally available by the Holders, and the Registration Statement and any form of prospectus included or incorporated by reference therein (or any prospectus supplement relating thereto) shall reflect such plan of distribution or method of sale.
(b) use its reasonable best effortsThe Company shall, subject to receipt of necessary information from the InvestorsHolders, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 days after the Closing Date;
(c) use its reasonable best efforts to cause the Commission to declare the Registration Statement effective on or prior to the date that is one year from the date hereof (such date, the “Lockup Termination Date”).
(c) The Company shall (i) prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the Prospectus prospectus used in connection therewith as may be (A) reasonably necessary to keep the Registration Statement current and continuously effective for a period not exceeding, with respect to until the Investor's Shares purchased hereunder, the earlier earliest of (ix) twenty four months after the second anniversary later of the Closing effective date of the Registration Statement and the Lockup Termination Date, (iiy) the date on which all Registrable Securities have been disposed of under the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or Registration Statement and (iiiz) such time as all Shares purchased by such Investor in this Offering Registrable Securities have been sold otherwise transferred to holders who may: trade such securities without restriction under the Securities Act, and the Company has delivered a new certificate or other evidence of ownership for such securities not bearing a restrictive. legend (the earliest of such dates being referred to herein as the “Expiration Date”); or (B) reasonably requested by the Holders (whether or not required by the form on which the securities are being registered), and shall use its reasonable best efforts to cause each such amendment to be declared effective by the Commission, if required, as soon as practicable after the filing thereof, (ii) cause any related prospectus to be supplemented by any required supplement, and as so supplemented to be filed with the Commission pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered Rule 424 under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all (or any of similar provisions then in force under the Shares by the InvestorSecurities Act), provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will extent required, and (iii) comply in all material respects 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 such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares pursuant respect to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge disposition of the issuance of any stop order all securities covered by the SEC delaying or suspending the effectiveness of the Registration Statement or of during the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined applicable period in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file accordance with the SEC in a timely manner all reports and other documents required intended methods of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information disposition as may be reasonably requested from time to time by the Holders and set forth in order to avail the Investor of any rule such Registration Statement as so amended or regulation of the SEC that permits the selling of any such Shares without registration. prospectus as so supplemented.
(d) The Company understands that shall bear the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing Costs and Expenses of the Registration Statement with the SECStatement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Cedar Shopping Centers Inc)
Registration Procedures and Expenses. (i) The Company shall: ------------------------------------shall prepare and file with the SEC, as promptly as reasonably practicable following Closing, but in no event later than 120 days following Closing (the “Filing Date”), a registration statement on Form S-1, covering the resale of the Shares and Warrant Shares (the “Registrable Securities” and the “Registration Statement”) and shall use its commercially reasonable efforts to have the Registration Statement declared effective within 180 days after the Closing. Participant’s Initials 2 Generation Hemp, Inc.
(ii) The Company shall use its commercially reasonable best efforts to:
(a) prepare and file with the SEC, within 90 days after the Closing Date, a registration statement on Form S-3 (the "Registration Statement"), to enable the resale of the Shares by the Investors from time to time on a national securities exchange or in privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 days after the Closing Date;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus prospectus forming part thereof (the “Prospectus”) used in connection therewith as may be necessary or advisable to keep the Registration Statement current and effective for the Registrable Securities held by a Participant for a period not exceeding, with respect to ending on the Investor's Shares purchased hereunder, the earlier earliest of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor all Registrable Securities may sell all Shares then held by the Investor without restriction by the volume limitations of be sold pursuant to Rule 144(e) of 144 under the Securities Act, Act or any successor rule (“Rule 144”) during any three-month period without the requirement for the Company to be in compliance with the current public information required under Rule 144(c)(1) or (iii) such time as all Shares purchased by such Investor in this Offering Registrable Securities have been sold pursuant to a registration statementstatement or Rule 144. The Company shall notify each Participant promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective by the SEC and advise each Participant that the form of Prospectus contained in the Registration Statement or post-effective amendment thereto, as the case may be, at the time of effectiveness meets the requirements of Section 10(a) of the Securities Act or that it intends to file a Prospectus pursuant to Rule 424(b) under the Securities Act that meets the requirements of Section 10(a) of the Securities Act;
(db) furnish to the Investor Participant with respect to the Shares Registrable Securities registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses Statement and Preliminary Prospectuses the Prospectus (including supplemental prospectuses) filed with the SEC in conformity conformance with the requirements of the Securities Act and other such other documents as the Investor Participant may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares Registrable Securities by the Investor, provided, however, that Participant;
(c) pay the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt expenses incurred by the Company in complying with this Section, including, all registration and filing fees, FINRA fees, exchange listing fees, printing expenses, fees and disbursements of reasonable assurances from counsel for the Investor that the Investor will comply with the applicable provisions of the Securities Act and of such other securities or Company, blue sky laws as may be fees and expenses and the expense of any special audits incident to or required by any such registration (but excluding attorneys’ fees of any Participant and any and all underwriting discounts and selling commissions applicable in connection with any use to the sale of such Prospectuses or Preliminary ProspectusesRegistrable Securities by the Participants);
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and
(gd) advise the Investors Participants, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company it will promptly use its commercially reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.; and
(he) With with a view to making available to the Investor Participant the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor Participant to sell Shares Registrable Securities to the public without registration, the Company covenants and agrees to use its commercially reasonable efforts to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may Registrable Securities qualify to be resold immediately pursuant to Rule 144(k) 144 or any other rule of similar effect during any three-month period without the requirement for the Company to be in compliance with the current public information required under Rule 144(c)(1) or (B) such date as all of the Investor's Shares Registrable Securities shall have been resoldresold pursuant to Rule 144 (and may be further resold without restriction); (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Exchange Act; and (iii) furnish to the Investor Participant upon request, as long as the Investor Participant owns any SharesRegistrable Securities, (A) a written statement by the Company that as to whether it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the Company's ’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor Participant of any rule or regulation of the SEC that permits the selling of any such Shares Registrable Securities without registration. Participant’s Initials 3 Generation Hemp, Inc.
(iii) The Participant agrees and confirms that a requirement to the Company understands including such Participant’s Registrable Securities in the Registration Statement is that the Investor disclaims being an underwriterParticipant will work in good faith with the Company to supply the Company with any and all information the Company may reasonably request from the Participant from time to time in connection with the preparation of the Registration Statement, but including, customary and reasonable representations and confirmations regarding the Investor being deemed an underwriter Shares and Warrant Shares held by the SEC Participants, information relating to the beneficial ownership of other securities of the Company held by such Participant and its affiliates, information regarding the persons with voting and dispositive control over the Participant and such other information as the Company or its legal counsel may reasonably request (which requirement may be waived by the Company).
(iv) The Participants acknowledge and understand that the Filing Date shall not relieve be extended in the event the Company is currently in the process of undertaking and/or is currently contemplating an offering by the Company of securities for its own account if the managing underwriter or placement agent shall have advised the Company in writing that such Registration Statement or the inclusion of such Registrable Securities in such registration statement will have a material adverse effect upon the ability of the Company to sell securities for its own account, and provided further that the Participants are not treated less favorably than others seeking to have their securities included in such registration statement. Notwithstanding the obligations set forth above, if any obligations it has hereunderSEC guidance sets forth a limitation on the number of securities permitted to be registered on the Registration Statement (including any other securities included by the Company in such Registration Statement; provided further that the Company shall not be prohibited from including other securities on such Registration Statement), the number of Registrable Securities to be included on such Registration Statement for the benefit of the Participants will be reduced pro rata between the Participants (or other parties) whose securities are included in such Registration Statement and the Company; provided further that the Company shall take action to file additional registration statements at the written request of the holders of a majority in interest of the Shares sold in the Offering after the effectiveness of the Registration Statement, subject to SEC rules and guidance and the requirements set forth above, provided, however, that if the Company receives notification from shall not be required to file more than one additional Registration Statement in any rolling six (6) month period. Notwithstanding the SEC above, the Participants agree that the Investor is deemed an underwriterCompany shall not be required to register securities totaling more than 1/3rd of its then public float on the Registration Statement. Further notwithstanding the above, then the period by which the Company is obligated may at any time take action to submit an acceleration request register the Warrant Shares under the Securities Act and the Participants agree to take reasonable actions and provide the SEC shall be extended Company reasonable information to the earlier of (i) the 90th day after facilitate any such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECregistration.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) prepare and file with the SEC, within 90 days after the Closing Date, a registration statement on Form S-3 (the "Registration Statement"), to enable the resale of the Shares by the Investors from time to time on a national securities exchange or in privately-negotiated transactions;
(b) use its commercially reasonable best efforts, subject to receipt of necessary information from the InvestorsPurchasers, to file a Resale Registration Statement (the “Mandatory Registration Statement”) with the Commission as promptly as possible following the Closing and no later than the 45th calendar day following the Closing Date (the “Filing Date”) to register all of the Registrable Shares for resale on Form S-1 under the Securities Act, and to provide each Purchaser with a copy of such draft Mandatory Registration Statement for review not less than five (5) Business Days before filing;
(b) use its commercially reasonable efforts, subject to receipt of necessary information from the Purchasers, to cause the such Mandatory Registration Statement to become be declared effective, and any other qualifications or compliances (including, without limitation, the execution of any required undertaking to file post-effective amendments, appropriate qualifications or exemptions under applicable blue sky or other state securities laws and appropriate compliance with applicable securities laws, requirements or regulations) as soon promptly as practicablepossible after the filing thereof, but in any event no event later than 150 days after the earlier of (i) the 60th calendar day following the Closing Date (or if the Commission reviews such filing, the 120th calendar day following the Closing Date, provided, however, such time period shall be extended, upon written notification to the Purchasers, by the number of days the Company is subject to a Force Majeure Event that occurs during this period) and (ii) the 5th Business Day after the date the Company is notified (orally or in writing, whichever is earlier) by the Commission that the Mandatory Registration Statement will not be “reviewed” or will not be subject to further comments from the Staff (such date, the “Effectiveness Deadline”), such efforts to include, without limiting the generality of the foregoing, preparing and filing with the Commission any financial statements or other information that is required to be filed prior to the effectiveness of such Mandatory Registration Statement;
(c) notwithstanding anything contained in this Agreement to the contrary, in the event that the Commission limits the amount of Registrable Shares or otherwise requires a reduction in the number of Registrable Shares that may be included and sold by the Purchasers in the Mandatory Registration Statement (in each case, subject to Section 4.3), then the Company shall prepare and file (i) within ten (10) Business Days of the first date or time that such excluded Registrable Shares may then be included in a Resale Registration Statement if the Commission shall have notified the Company that certain Registrable Shares were not eligible for inclusion in the Resale Registration Statement or (ii) in all other cases, within twenty (20) days following the date that the Company becomes aware that such additional Resale Registration Statement is required (the “Additional Filing Date”), a Resale Registration Statement (any such Resale Registration Statement registering such excluded Registrable Shares, an “Additional Registration Statement”) to register any Registrable Shares that have been excluded (or, if applicable, the maximum number of such excluded Registrable Shares that the Company is permitted to register for resale on such Additional Registration Statement consistent with Commission guidance), if any, from being registered on the Mandatory Registration Statement;
(d) use its commercially reasonable best efforts to cause any such Additional Registration Statement to be declared effective as promptly as practicable following the Additional Filing Date, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the Commission any financial statements or other information that is required to be filed prior to the effectiveness of any such Additional Registration Statement;
(e) prepare and file with the SEC Commission such amendments and supplements to the such Resale Registration Statement Statements and the Prospectus prospectus used in connection therewith as may be necessary to keep the such Resale Registration Statement current Statements continuously effective and effective for free from any material misstatement or omission to state a period not exceedingmaterial fact therein until termination of such obligation as provided in Section 4.6 below, with respect subject to the Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold Company’s right to suspend pursuant to a registration statementSection 4.5;
(df) furnish to the Investor with respect to the Shares registered under the Registration Statement Purchasers such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor Purchasers may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply with the applicable provisions of the Securities Act and of Purchasers;
(g) file such other securities or blue sky laws documents as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal securities law clearance for the resale of the Registrable Shares in such states of the United States as may be reasonably requested by the Purchasers and use its commercially reasonable efforts to maintain such blue sky clearance in states specified in writing by qualifications during the Investor, period the Company is required to maintain effectiveness of the Resale Registration Statements; provided, however, that the Company shall not be required in connection with this Section 4.2(g) to qualify to do business as a foreign corporation or execute a general consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(fh) upon notification by the Commission that the Resale Registration Statement will not be reviewed or is not subject to further review by the Commission, the Company shall within three (3) Business Days following the date of such notification request acceleration of such Resale Registration Statement (with the requested effectiveness date to be not more than two (2) Business Days from the date of such acceleration request);
(i) upon notification by the Commission that the Resale Registration Statement has been declared effective by the Commission, the Company shall file the final prospectus under Rule 424 by 9:30 a.m. New York time on the Business Day following the date such Resale Registration Statement has been declared effective;
(j) advise the Purchasers promptly (provided that in no event shall such notice contain any material, nonpublic information):
(i) of the effectiveness of the Resale Registration Statement or any post-effective amendments thereto;
(ii) of any request by the Commission for amendments to the Resale Registration Statement or amendments to the prospectus or for additional information relating thereto;
(iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Resale Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Registrable Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes; and
(iv) of the existence of any fact and the happening of any event that makes any statement of a material fact made in the Resale Registration Statement, the prospectus and amendment or supplement thereto, or any document incorporated by reference therein, untrue, or that requires the making of any additions to or changes in the Resale Registration Statement or the prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided such notice shall not disclose any material, non-public information concerning the Company to the Purchasers;
(k) cause all Registrable Shares to be listed on each securities exchange, if any, on which equity securities by the Company are then listed; and
(l) bear all expenses in connection with the procedures in paragraph paragraphs (a) through (ek) of this Section 7.1 4.2 and the registration of the Registrable Shares pursuant on such Resale Registration Statement and the satisfaction of the blue sky laws of such states (but excluding the fees of legal counsel for any Purchaser).
(m) If (i) the Mandatory Registration Statement is not filed with the Commission on or prior to the Filing Date, the Company will make pro rata payments to each Purchaser then holding Registrable Shares, (ii) the Mandatory Registration Statement covering the Registrable Shares is not declared effective by the Commission on or prior to the Effectiveness Deadline or (iii) after the Mandatory Registration Statement has been declared effective by the Commission, (A) such Registration Statement ceases for any reason (including, without limitation, by reason of a stop order, or the Company’s failure to update the Registration Statement; and
) to remain continuously effective as to sell all Registrable Shares for which it is required to be effective, (gB) advise the Investors promptly after it shall receive notice Purchasers are not permitted to utilize the Prospectus therein to resell such Registrable Shares (other than during permitted suspension under Section 4.5), or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness (C) a permitted suspension of the Registration Statement or under Section 4.5 exceeds the length set forth therein, (each of the initiation of foregoing events in clauses (i), (ii) and (iii), a “Registration Failure”), then, in addition to any proceeding for that purpose; and other rights the Purchasers may have hereunder or under applicable law, the Company will promptly use its reasonable efforts make pro rata payments to prevent each Purchaser of then outstanding Registrable Shares, as liquidated damages and not as a penalty (the issuance “Liquidated Damages”), in an amount equal to one percent (1.0%) of any stop order the aggregate amount invested by such Purchaser for the Registrable Shares then held by such Purchaser for the initial day of a Registration Failure and for each thirty (30) day period (or pro rata portion thereof with respect to obtain its withdrawal a final period, if any) thereafter until the Registration Failure is cured. The Liquidated Damages shall be paid monthly within ten (10) Business Days of the date of such Registration Failure and the end of each subsequent thirty (30) day period (or portion thereof with respect to a final period, if any) thereafter until the Registration Failure is cured. Such payments shall be made in cash to each Purchaser then holding Registrable Shares. Interest shall accrue at the earliest possible moment if rate of one percent (1.0%) per month on any such stop order should Liquidated Damages payments that shall not be issued.
paid by the applicable payment date until such amount is paid in full. Notwithstanding the foregoing, (hI) With a view no Liquidated Damages shall be payable with respect to making available to any period after the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation expiration of the SEC Effectiveness Period (as defined below) (it being understood that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC this sentence shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request Liquidated Damages accruing prior to the SEC expiration of the Effectiveness Period), (II) in no event shall the aggregate amount of Liquidated Damages payable to a Purchaser exceed, in the aggregate, four percent (4.0%) of the aggregate purchase price paid by such Purchaser pursuant to this Section 4.2(m) and (III) no Liquidated Damages shall accrue or be extended payable with respect to any reduction in the number or Registrable Shares to be included in a Registration Statement due to the earlier application of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECRule 415 as set forth in Section 4.3.
Appears in 1 contract
Samples: Securities Purchase Agreement (CARGO Therapeutics, Inc.)
Registration Procedures and Expenses. The Company shall: ------------------------------------As to any shares of the Restricted Stock that are subject to a Registration Notice under the Demand Rights and as to which ASI does not exercise the Option provided for in Section 7, ASI will:
(a) as expeditiously as is reasonably practicable after the expiration of the period within which ASI may exercise the Option, prepare and file with the SEC, within 90 days after the Closing DateCommission, a registration statement on Form S-3 (the "Registration Statement"), with respect to enable the resale of the Shares by the Investors from time such securities and use its best efforts to time on a national securities exchange or in privately-negotiated transactionscause such registration statement to become effective and to remain effective for 90 days;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon expeditiously as is reasonably practicable, but in no event later than 150 days after the Closing Date;
(c) use its reasonable best efforts to prepare and file with the SEC Commission such amendments and supplements to the Registration Statement such registration statement and the Prospectus prospectus used in connection therewith with such registration statement as may be necessary to keep the Registration Statement current and such registration statement effective for a the period not exceeding, specified in paragraph (a) above and to comply with the provisions of the Securities Act with respect to the Investor's Shares purchased hereunder, the earlier disposition of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased Restricted Stock covered by such Investor registration statement in this Offering have been sold pursuant to a accordance with the Shareholder's intended method of disposition set forth in such registration statementstatement for such period;
(dc) as expeditiously as is reasonably practicable, furnish to the Investor with respect Shareholder and to the Shares registered under the Registration Statement each underwriter such number of copies of the Registration Statement, Prospectuses registration statement and Preliminary Prospectuses the prospectus included in conformity with the requirements of the Securities Act and registration statement (including each preliminary prospectus) as such other documents as the Investor persons may reasonably request, request in order to facilitate the public sale or other disposition of the Restricted Stock covered by such registration statement;
(d) use its best efforts to register or qualify the Restricted Stock covered by such registration statement under the securities or blue sky laws of such jurisdictions as the Shareholder or, in the case of an underwritten public offering, the managing underwriter, reasonably request, if such registrations are required by law;
(e) immediately notify the Shareholder and each underwriter, at any time when a prospectus relating to such registration statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus contained in such 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 in such prospectus or necessary to make the statements in such prospectus not misleading in the light of the circumstances then existing;
(f) use its best efforts (if the offering is underwritten) to furnish, at the request of the Shareholder on the date that the Restricted Stock is delivered to the underwriters for sale pursuant to such registration: (i) an opinion dated such date of counsel representing ASI for the purposes of such registration, addressed to the underwriters and to the Shareholder stating that such registration statement has become effective under the Securities Act and that (A) to the best knowledge of such counsel, no stop order suspending the effectiveness of such registration statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (B) the registration statement, the related prospectus, and each amendment or supplement of each of them, comply as to form in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission under the Securities Act (except that such counsel need express no opinion as to financial statements and other financial and statistical data contained in each of them) and (C) to such other effects as may reasonably be requested by counsel for the underwriters or by the Shareholder or its counsel, and (ii) a letter dated such date from the independent public accountants retained by ASI, addressed to the under- writers and to the Shareholder, stating that they are independent public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the financial statements of ASI included in the registration statement or the prospectus, or any amendment or supplement of such statement or prospectus, comply as to form in all material respects with the applicable accounting requirements of the Shares Securities Act, and such letter will additionally cover such other financial matters with respect to the registration in respect of which such letter is being given as such underwriters may reasonably request;
(g) as expeditiously as is reasonably practicable, make available for inspection by the InvestorShareholder, and any attorney, accountant or other agent retained by the Shareholder, all financial and other records, pertinent corporate documents and properties of ASI, and cause ASI's officers, directors and employees to supply all information reasonably requested by the Shareholder or any such attorney, accountant or agent in connection with such registration statement;
(h) as expeditiously as is reasonably practicable, cause all the Restricted Stock covered by the registration statement to be listed on each securities exchange on which similar securities of ASI are then listed; and
(i) provide a transfer agent and registrar for all the Restricted Stock covered by the registration statement not later than the effective date of such registration statement. The provisions of Section 8(a) through (i) will also apply to all shares of the Restricted Stock that are subject to a Registration Notice under the Incidental Rights and as to which ASI does not exercise the Option provided for in Section 7, except that ASI will be entitled to control the timing of the registration process in all respects and may withdraw or terminate any such registration at any time. In connection with each registration under this Agreement, the Shareholder will furnish to ASI in writing such information with respect to himself and the proposed distribution by him as will be reasonably necessary in order to assure compliance with federal and applicable state securities laws. In connection with each registration pursuant to Sections 5 or 6 covering an underwritten public offering, ASI and the Shareholder will enter into a written agreement with the managing underwriter selected in the manner provided above in such form and containing such provisions as are customary in the securities business for such an arrangement between major underwriters and companies of ASI's size and investment stature; provided, however, that such agreement will not contain any such provision applicable to ASI or the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply Shareholder which is inconsistent with the applicable provisions of the Securities Act this Agreement and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, howeverfurther, that the Company shall not time and place of the closing under said agreement will be required to 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;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 as mutually agreed upon among ASI, such managing underwriter and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issuedShareholder.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) subject to receipt of necessary information from the Investors, use its reasonable best efforts to prepare and file with the SEC, within 90 days after the Closing Date, a registration statement on Form S-3 (the "Registration Statement"), ) on Form SB-2 or any other available form to enable the resale of the Registrable Shares (as defined below) by the Investors on a delayed or continuous basis under Rule 415 of the Securities Act. The Registration Statement may include shares of common stock other than those held by the Investor and the Other Investors, provided that the inclusion of those shares would not affect the plan of distribution included in the Registration Statement. "Registrable Shares" means (a) all shares of Common Stock purchased in the Offering, (b) all shares of Common Stock underlying the Warrants, and (c) any shares of capital stock issued or issuable, from time to time, upon any reclassification, share combination, share subdivision, stock split, share dividend, merger, consolidation or similar transaction or event or otherwise as a distribution on, in exchange for or with respect to any of the foregoing, in each case held at the relevant time on a national securities exchange or in privately-negotiated transactionsby an Investor;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than within 150 days after the Closing Date;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus used in connection therewith and take all such other actions as may be necessary to keep the Registration Statement current and effective for a period (the "Registration Period") not exceeding, with respect to the each Investor's Shares purchased hereunderRegistrable Shares, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares the shares of Common Stock, Warrants and shares of Common Stock issuable upon exercise of the Warrants then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or and (iii) such time as all Registrable Shares purchased held by such Investor in this Offering have been sold (A) pursuant to a registration statement, (B) to or through a broker or dealer or underwriter in a public distribution or a public securities transaction, and/or (C) in a transaction exempt from the registration and prospectus delivery requirements of the Securities Act under SECTION 4(1) thereof so that all transfer restrictions and restrictive legends with respect thereto, if any, are removed upon the consummation of such sale;
(d) promptly furnish to the Investor with respect to the Registrable Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary Prospectuses;
(e) file documents required promptly take such action as may be necessary to qualify, or obtain, an exemption for the Registrable Shares under such of the Company for normal blue sky clearance state securities laws of United States jurisdictions as shall be necessary to qualify, or obtain an exemption for, the sale of the Registrable Shares in states specified in writing by the Investor, ; provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph (a) through (ec) of this Section SECTION 7.1 and the registration of the Registrable Shares pursuant to the Registration Statement, regardless of whether a Registration Statement becomes effective, including without limitation: (i) all registration and filing fees and expenses; and(ii) fees and expenses of compliance with federal securities and state "blue sky" or securities laws; (iii) expenses of printing (including printing certificates for the Registrable Shares and Prospectuses), messenger and delivery services and telephone; (iv) all application and filing fees in connection with listing the Registrable Shares on a national securities exchange or automated quotation system pursuant to the requirements hereof; and (v) all fees and disbursements of counsel of the Company and independent certified public accountants of the Company; provided, however, that each Investor shall be responsible for paying the underwriting commissions or brokerage fees, and taxes of any kind (including, without limitation, transfer taxes) applicable to any disposition, sale or transfer of such Investor's Registrable Shares and any fees and expenses of counsel or other advisors to the Investor or Other Investors. The Company shall, in any event, bear its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit, rating agency fees and the fees and expenses of any person, including special experts, retained by the Company;
(g) advise the Investors promptly Investors, within two business days by e-mail, fax or other type of communication, and, if requested by such person, confirm such advice in writing: (i) after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation or threat of any proceeding for that purpose, or any other order issued by any state securities commission or other regulatory authority suspending the qualification or exemption from qualification of such Registrable Shares under state securities or "blue sky" laws; and the Company it will promptly use its reasonable best efforts to prevent the issuance of any stop order or other order or to obtain its withdrawal at the earliest possible moment if such stop order or other order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file when the Prospectus or any Prospectus Supplement or post-effective amendment has been filed, and, with respect to the SEC in a timely manner all reports and other documents required of Registration Statement or any post-effective amendment thereto, when the Company under the Exchange Actsame has become effective; and (iii) furnish after the Company shall receive notice or obtain knowledge of the existence of any fact or the happening of any event that makes any statement of a material fact made in the Registration Statement, the Prospectus, any amendment or supplement thereto, or any document incorporated by reference therein untrue, or that requires the making of any additions to or changes in the Investor upon requestRegistration Statement or the Prospectus in order to make the statements therein not misleading;
(h) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC which could affect the sale of the Registrable Shares;
(i) use its reasonable best efforts to cause all Registrable Shares to be listed on each securities exchange or market, as long as the Investor owns any Sharesif any, (A) a written statement on which equity securities issued by the Company that it has complied with are then listed; and
(j) use its reasonable best efforts to take all other steps necessary to effect the reporting requirements registration of the Exchange Act, (B) a copy of Registrable Shares contemplated hereby and to enable the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order Investors to avail sell the Investor of any rule or regulation of the SEC that permits the selling of any such Registrable Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECunder Rule 144.
Appears in 1 contract
Samples: Securities Purchase Agreement (Avax Technologies Inc)
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) prepare and use its best efforts to file with the SEC, within 90 days after the Closing Date, a registration statement with the SEC within thirty (30) days following the Closing Date to register the Registrable Shares on Form S-3 under the Securities Act (the "Registration Statement"), to enable the resale providing for shelf registration of the Common Stock under SEC Rule 415) or on such other form which is appropriate to register all of the Registrable Shares by the Investors for resale from time to time on a national securities exchange or in privately-negotiated transactionsby the Purchasers;
(b) use its reasonable best efforts, subject to receipt of necessary information from the InvestorsPurchasers, to cause the such Registration Statement to become effective as soon promptly after filing as practicable, but and in no event later than 150 any event, within ninety (90) days after following the Closing Date, and to cause (at the Company's expense) Coolxx Xxxward LLP, counsel to the Company, to furnish to each Purchaser an opinion dated as of the effective date to the effects set forth in EXHIBIT B;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the such Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the such Registration Statement current and effective for a period not exceedinguntil termination of such obligation as provided in Section 7.5 below, with respect subject to the InvestorCompany's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold right to suspend pursuant to a registration statementSection 7.4;
(d) furnish to the Investor with respect each Purchaser (and to the Shares registered under the Registration Statement each underwriter, if any, of such Common Stock) such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor Purchasers may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary ProspectusesPurchasers;
(e) file such documents as may be required of the Company for normal blue sky securities law clearance for the resale of the Registrable Shares in such states specified in writing of the United States as may be reasonably requested by the Investor, each Purchaser; provided, however, that the Company shall not be required in connection with this paragraph (e) to qualify to do business as a foreign corporation or execute a general consent to service of process in any jurisdiction in which it is not now so qualified or has not so consentedjurisdiction;
(f) advise each Purchaser promptly:
(i) of any request by the SEC for amendments to the Registration Statement or amendments to the prospectus or for additional information relating thereto:
(ii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Registrable Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes; and
(iii) of the existence of any fact and the happening of any event that makes any statement of a material fact made in the Registration Statement, the prospectus and amendment or supplement thereto, or any document incorporated by reference therein, untrue, or that requires the making of any additions to or changes in the Registration Statement or the prospectus in order to make the statements therein not misleading;
(g) in connection with the filing of any document that is to be incorporated by reference into the Registration Statement or the prospectus (after the initial filing of the Registration Statement):
(i) use its best efforts to provide copies of such document to the Purchasers concurrently with such filing; and
(ii) make a Company representative available for discussion of such document;
(h) use its best efforts to cause all Registrable Shares to be listed on each securities exchange, if any, on which equity securities by the Company are then listed; and
(i) bear all expenses in connection with the procedures in paragraph paragraphs (a) through (eh) of this Section 7.1 7.2 and the registration of the Registrable Shares pursuant to on such Registration Statement and the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge satisfaction of the issuance blue sky laws of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issuedstates.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Registration Procedures and Expenses. The Company Purchaser shall: ------------------------------------
(a) as soon as practicable after the closing date but not later than ninety (90) days after the closing date, prepare and file with the SEC, within 90 days after Securities and Exchange Commission (the Closing Date, "Commission") a registration statement on Form S-3 which meets the requirements of Rule 415 promulgated under the Securities Act (the a "Shelf Registration Statement"), to enable ) covering the resale of the Shares sale by the Investors Stockholders from time to time on of four fifths (4/5/ths/) of the shares of the Purchaser Common Stock received by the Stockholders under this Agreement. Purchaser may extend its obligation to file a national securities exchange registration statement only if Purchaser advises the Stockholders that there is a pending, but unannounced transaction or in privately-negotiated transactions;development which Purchaser determines is not then appropriate for disclosure, and that registration of the Purchaser Common Stock would require such disclosure.
(b) use its reasonable best efforts, subject to receipt of necessary information from the InvestorsStockholders, to cause each of the Shelf Registration Statement Statements to become effective as soon as practicable, but in no event later than 150 days after the Closing Dateeffective;
(c) use its reasonable best efforts to prepare and file with the SEC Commission such amendments and supplements to the Shelf Registration Statement Statements and the Prospectus prospectus used in connection therewith as may be necessary to keep the Shelf Registration Statement current and Statements effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, until the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held Purchaser Common Stock registered by such Shelf Registration Statement has been sold, or one year from the Investor without restriction by the volume limitations of Rule 144(e) date of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statementinitial filing thereof;
(d) during the period referred to in (c) above, prepare and promptly file with the Commission, and promptly notify the Stockholders of the filing of, such amendment or supplement to each such Shelf Registration Statement and the prospectus as may be necessary to correct any statements or omissions if, at any time when a prospectus relating to the Purchaser Common Stock is required to be delivered under the Securities Act, any event has occurred the result of which is that any such prospectus then in effect would include or incorporate an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading in light of the circumstances in which they were made;
(e) advise the Stockholders, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of any of such Shelf Registration Statements or the initiation or threatening of any proceeding for that purpose and promptly use its diligent best efforts to prevent the issuance of any stop order and to obtain its withdrawal if such stop order should be issued;
(f) furnish to the Investor Stockholders with respect to the Shares Purchaser Common Stock registered under any of the Shelf Registration Statement Statements such number of copies of the Registration Statement, Prospectuses prospectuses and Preliminary Prospectuses preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor Stockholders may reasonably requestrequest (but in no event more than 100 copies), in order to facilitate the public sale or other disposition of all or any of the Shares registered Purchaser Common Stock by the Investor, Stockholders; provided, however, that -------- ------- the obligation of the Company Purchaser to deliver copies of Prospectuses prospectuses or Preliminary Prospectuses preliminary prospectuses to the Investor Stockholders shall be subject to the receipt by the Company Purchaser of reasonable assurances from the Investor Stockholders that the Investor Stockholders 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 such Prospectuses prospectuses or Preliminary Prospectusespreliminary prospectuses;
(eg) file documents required of the Company Purchaser for normal blue sky clearance in states reasonably specified in writing by the InvestorStockholders, provided, however, that the Company Purchaser shall not be required to 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
(fh) bear all expenses in connection with the procedures in paragraph paragraphs (a) through (eg) of this Section 7.1 11.1 and the registration of the Shares Purchaser Common Stock pursuant to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge each of the issuance Shelf Registration Statements, other than fees and expenses, if any, of any stop order by the SEC delaying counsel or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available other advisers to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECStockholders.
Appears in 1 contract
Samples: Agreement for Purchase of Stock (Sylvan Learning Systems Inc)
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) subject to receipt of necessary information from the Investors, prepare and file with the SEC, within 90 ten (10) days after the Closing Date, a registration statement on Form S-3 (the "Registration Statement"), ) to enable the resale of the Shares by the Investors from time to time on a national securities exchange through the automated quotation system of the Nasdaq Stock Market or in privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 ninety (90) days after the Closing Date;Registration Statement is filed by the Company.
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to the each Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, Act or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;.
(d) furnish to the Placement Agent and to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors Investors, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company it will promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 120 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) prepare and file with the SEC, Commission within 90 ten (10) business days after of the Closing Date, Commitment Date a registration statement Registration Statement on Form S-3 (the "Registration Statement"), ) to enable the resale sale of the Shares by the Investors Purchaser from time to time on a national securities exchange through the automated quotation system of the Nasdaq National Market System or in privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the InvestorsPurchaser, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 days possible after the Closing Datefiling thereof;
(c) use its reasonable best efforts to promptly prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to exceeding the Investor's Shares purchased hereunder, the earlier of (i) the second third anniversary of the Closing Date, (ii) Date as is required for the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations intended method of Rule 144(e) of the Securities Actdistribution, or (iii) such time as shorter period which will terminate when all the Shares purchased covered by such Investor in this Offering Registration Statement have been sold pursuant to a registration statement;
such Registration Statement or withdrawn; 7 (d) promptly furnish to the Investor Purchaser with respect to the Shares registered under the Registration Statement (and to each underwriter, if any, of such Shares) such number of copies of the Registration Statement, Prospectuses Statement and Preliminary Prospectuses any amendment thereof and of prospectuses and preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor Purchaser may reasonably request, in order to keep the Purchaser apprised of the progress of the registration process and to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary ProspectusesPurchaser;
(e) promptly file documents required of the Company for normal blue sky clearance in states specified in writing by the InvestorPurchaser and reasonably required by the Purchaser in order to resell its Shares, provided, however, that the Company shall not be required to 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;
(f) promptly inform the Purchaser when any stop order by the Commission has been issued with respect to the Purchaser's Shares and use its best efforts to promptly cause such stop order to be withdrawn; and
(g) bear all expenses in connection with the procedures in paragraph paragraphs (a) through (ef) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise Statement and pay up to $2,500 of reasonable fees and expenses of outside counsel to the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of Purchaser. A questionnaire related to the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement completed by the Company that it has complied with the reporting requirements Purchaser is attached hereto as part of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.Appendix I.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------
(a) The Company shall prepare and file with the SEC, within 90 as promptly as reasonably practicable following Closing, but in no event later than 30 days after following the Closing date hereof (the “Initial Filing Date”), a registration statement on Form S-3 (the "Registration Statement"or any successor to Form S-3), to enable covering the resale of the Shares by Registrable Securities (as defined below) (the Investors from time to time on a national securities exchange or in privately-negotiated transactions;
(b“S-3 Registration Statement”) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective and as soon as practicable, reasonably practicable thereafter but in no event later than 150 90 days after following the Closing Date;
date hereof (c120 days in the event of a full review of the S-3 Registration Statement by the SEC), to effect such registration and any related qualification or compliance with respect to all Registrable Securities held by the Purchasers. For purposes of this Agreement, the term “Registrable Securities” shall mean (i) use its reasonable best efforts the Warrant Shares; and (ii) any Common Stock of the Company issued as (or issuable upon the conversion or exercise of any warrant, right or other security which is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of, any Warrant Shares. In the event that Form S-3 (or any successor form) is or becomes unavailable to register the resale of the Registrable Securities at any time prior to the expiration of the Purchasers’ registration rights pursuant to Section 6.6, the Company shall prepare and file with the SEC such amendments SEC, as promptly as reasonably practicable following the Closing but in no event later than the Initial Filing Date, a registration statement on Form S-1 (or any successor to Form S-1), covering the resale of the Registrable Securities (the “S-1 Registration Statement” and supplements to collectively the S-3 Registration Statement, the “Registration Statement”) and as soon as reasonably practicable thereafter but in no event later than 90 days following the date hereof (120 days in the event of a full review of the S-1 Registration Statement by the SEC), to effect such registration and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, any related qualification or compliance with respect to the Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then Registrable Securities held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of Purchasers. If the Company is not eligible to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by use Form S-3 at Initial Filing Date, and the Company of reasonable assurances from subsequently becomes eligible to use Form S-3 during the Investor that the Investor will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws Effectiveness Period (as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investordefined below), provided, however, that the Company shall not be required to qualify to do business or consent to service file, as promptly as reasonably practicable, a new S-3 Registration Statement covering the resale of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection the Registrable Securities and replace the S-1 Registration Statement with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the new S-3 Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending Statement upon the effectiveness of the new S-3 Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issuedStatement.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------
(a) Following the Closing, the Company shall prepare and file with the SEC, within 90 days after the Closing Date, SEC a registration statement on Form S-3 (the "Registration Statement"), or any successor to enable Form S-3) covering the resale of the Registrable Securities (as defined below) (the “S-3 Registration Statement”) no later than 30 days after the Closing. For purposes of this Agreement, the term “Registrable Securities” shall mean (i) the Warrants; (ii) the Shares by and Warrant Shares; and (iii) any Common Stock of the Investors from time to time on Company issued as (or issuable upon the conversion or exercise of any warrant, right or other security which is issued as) a national securities exchange dividend or other distribution with respect to, or in privately-negotiated transactions;
(b) use its reasonable best effortsexchange for or in replacement of, subject to receipt of necessary information from any Shares or Warrant Shares. If the Investors, to cause the S-3 Registration Statement to become effective as soon as practicable, but in no event later than 150 has not been filed with the SEC on or before the date that is 30 days after the Closing (the “Required Filing Date;
(c) use its reasonable best efforts to prepare ”), the Company shall, on the business day immediately following the Required Filing Date and file with the SEC such amendments and supplements each 30th day thereafter, make a payment to the Purchasers as partial liquidated damages for such delay (together, the “Late Registration Statement and Payments”) equal to 1% of the Prospectus used in connection therewith as may be necessary to keep Purchase Price paid for the Registration Statement current and effective for a period not exceeding, with respect to Securities then owned by the Investor's Shares purchased hereunder, Purchasers until the earlier of (i) the second anniversary date the S-3 Registration Statement is filed with the SEC or (ii) the date on which all Common Shares may be sold pursuant to Rule 144. Late Registration Payments will be prorated on a daily basis during each 30 day period and will be paid to the Purchasers by wire transfer or check within five business days after the earlier of (i) the Closing end of each 30 day period following the Required Filing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) filing of the Securities Act, S-3 Registration Statement or (iii) such time as the date on which all Common Shares purchased by such Investor in this Offering have been may be sold pursuant to Rule 144. If the Company fails to pay any liquidated damages pursuant to this section in full within seven days after the date payable, the Company will pay interest thereon at a registration statement;
rate of 12% per annum (dor such lesser maximum amount that is permitted to be paid by applicable law) furnish to the Investor with respect Purchasers, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. “Business day” means any day except Saturday, Sunday and any day that is a federal legal holiday in the United States. In the event that Form S-3 (or any successor form) is or becomes unavailable to register the resale of the Registrable Securities at any time prior to the Shares registered under the Registration Statement such number of copies expiration of the Registration StatementPurchasers’ registration rights pursuant to Section 6.4, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 prepare and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required registration statement on Form S-1 (or any successor to Form S-1), covering the resale of the Company under Registrable Securities (the Exchange Act; “S-1 Registration Statement” and (iiicollectively the S-3 Registration Statement, the “Registration Statement”) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of cause the SEC that permits to declare the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the S-1 Registration Statement with the SECeffective as promptly as reasonably practicable.
Appears in 1 contract
Samples: Common Stock and Warrant Purchase Agreement (Research Frontiers Inc)
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) within fourteen (14) days immediately following each Closing, such actual date being referred to as the “Registration Date,” prepare and file with the SEC, within 90 days after the Closing Date, SEC a registration statement on Form S-3 (in order to register with the "Registration Statement"), SEC under the Securities Act a sale by CELL GENESYS on a delayed or continuous basis pursuant to enable Rule 415 under the resale Securities Act any or all of the Registrable Shares by then issued at such Closing through the Investors from time to time on a automated quotation system of the Nasdaq National Market System or the facilities of any national securities exchange on which the Company’s Common Stock is then traded, or in privately-negotiated transactionstransactions (a “Registration Statement”) (notwithstanding anything to the contrary expressed or implied herein, if a registration statement on Form S-3, or any substitute form, is not then available for registration of the Registrable Shares, the Company shall be obligated instead to prepare and file with the SEC a registration statement on Form S-1 in order to register the Registrable Shares under the Securities Act and such registration statement will be a “Registration Statement” for the purposes of this Agreement);
(b) use its reasonable best efforts, subject to receipt of necessary information from the InvestorsCELL GENESYS, use its commercially reasonably efforts to cause the such Registration Statement to become effective as soon as practicable, but in no event later than 150 days possible after the Closing Registration Date, and take all other reasonable actions necessary under any federal law or regulation to permit all Registrable Shares to be sold or otherwise disposed of thereunder;
(c) use its reasonable best efforts promptly notify CELL GENESYS, at any time when a prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in or relating to such Registration Statement contains an Untrue Statement;
(d) promptly prepare and file with the SEC SEC, and deliver to CELL GENESYS, such amendments and supplements to the such Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the such Registration Statement current and effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, the earlier until termination of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time obligation as all Shares purchased by such Investor provided in this Offering have been sold pursuant to a registration statementSection 8.7 below;
(de) furnish to the Investor with respect to the Shares registered under the Registration Statement CELL GENESYS such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably requestAct, in order to facilitate the public sale or other disposition of all or any of the Registrable Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply with the applicable provisions of the Securities Act and of CELL GENESYS;
(f) file such other securities or blue sky laws documents as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky state securities law clearance for the resale of the Registrable Shares in which states specified in writing of the United States as may be reasonably requested by the Investor, CELL GENESYS provided, however, that the Company shall not be required in connection with this paragraph (f) to qualify to do business as a foreign corporation or execute a general consent to service of process in any jurisdiction in which it is not now so qualified or has not so consentedjurisdiction;
(fg) no later than the Registration Date, use its best efforts to cause all Registrable Shares to be listed on each securities exchange, if any, on which equity securities by the Company are then listed; and
(h) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any 8.2, other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: than (i) make fees and keep public information availableexpenses, as those terms are understood if any, of counsel or other advisers to CELL GENESYS, and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with any expenses relating to the SEC in a timely manner all reports and other documents required sale of the Company under the Exchange Act; Registrable Shares by CELL GENESYS, including broker’s commission, discounts or fees and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECtransfer taxes.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it shall: ------------------------------------:
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, prepare and file with the SEC, within 90 days after the Closing Date, SEC as soon as practicable following such request a registration statement on Form S-3 (the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the Shares shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Investors Trust from time to time on a national securities exchange or in privately-negotiated transactions;
(b) the Nasdaq and use its all reasonable best efforts, subject to receipt of necessary information from the Investors, efforts to cause the such Registration Statement to become be declared effective as soon promptly as practicable, but in no event later than 150 days possible after the Closing Date;
(c) use its reasonable best efforts filing and to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement current and remain continuously effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, until the earlier of (i) the second later of the third anniversary of the Closing DateTransfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject to the date on which the Investor Transfer may sell all Shares then held by the Investor without restriction by the volume limitations of immediately be sold during any 90 day period pursuant to Rule 144(e) of 144 under the Securities Act, or (iii) such time as all Shares purchased by such Investor the closing of an acquisition of the Registrable Securities in this Offering have exchange for publicly traded stock (i.e., stock that has been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act for issuance to such Investor and such other documents as the Investor may reasonably request, in order to facilitate the public sale is listed on a national securities exchange or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph (a) through (eNasdaq) of this Section 7.1 and another entity (the registration of "Registration Period"). In the Shares pursuant to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding event that Form S-3 is unavailable for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) use such other information form as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any is available for such Shares without a registration. The Company understands that the Investor disclaims being an underwriterFor purposes of this Section 1.1(a), but the Investor being deemed an underwriter by the SEC "Grace Period" shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (imean a suspension under Section 1.2(b) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.and 1.2
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) following the execution of this Agreement, use its reasonable best efforts to prepare and file with the SEC, within 90 SEC by the date ten (10) days after the Closing Date but in any event by the date twenty (20) days after the Closing Date, a registration statement Registration Statement under the Securities Act on Form S-3 (the "Registration Statement"), a form which is appropriate to enable register the resale of the Shares by the Investors from time Purchaser, and use its reasonable best efforts to time on a national securities exchange or respond to any comment by the SEC relating to the Registration Statement before the tenth (10th) day following receipt of such comment, but in privately-negotiated transactionsany event before the twentieth (20th) day after such receipt;
(b) use its reasonable best efforts, subject to receipt of necessary information from the InvestorsPurchaser, to cause the Registration Statement such registration to become effective as soon as practicable, but in no event later than 150 within 180 days after the Closing Date;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the such Registration Statement Statement(s) and the Prospectus prospectus(es) used in connection therewith as may be necessary to keep such Registration Statement(s) effective until the Registration Statement current and effective for a period not exceeding, with respect earliest to the Investor's Shares purchased hereunder, the earlier occur of (i) the second anniversary of date which is two years after the Closing Effective Date, (ii) such time as all the date on which the Investor may sell all Shares then held have been sold by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities ActPurchasers, or and (iii) such time as all the Shares purchased by such Investor in this Offering have been sold are eligible for resale pursuant to a registration statementRule 144 under the Securities Act;
(d) furnish to the Investor Purchaser with respect to the Shares registered under on the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, Purchaser; provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses prospectuses to the Investor Purchaser shall be subject to the receipt by the Company of reasonable assurances from the Investor Purchaser that the Investor Purchaser 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 such Prospectuses or Preliminary Prospectusesprospectuses;
(e) file such documents as may be required of the Company for normal blue sky securities law clearance for the resale of the Shares in such states specified in writing of the United States as may be reasonably requested by the Investor, Purchaser; provided, however, that the Company shall not be required in connection with this paragraph (e) to qualify to do business as a foreign corporation or execute a general consent to service of process in any jurisdiction in which it is not now so qualified or has not so consentedjurisdiction;
(f) subject to Section 19 of this Agreement, bear all expenses in connection with the procedures in paragraph paragraphs (a) through (e) of this Section 7.1 9.2 and the registration of the Shares pursuant on such Registration Statement(s) and the satisfaction of the blue sky laws of such states, and other than underwriting discounts and selling commissions or expenses required by law to be borne by the Registration StatementPurchaser; and
(g) advise until the Investors promptly after it Effective Date, the Company shall receive notice or obtain knowledge pay to the Purchaser, on a monthly basis, a liquidated damages penalty of 1.0% of the issuance of any stop order by the SEC delaying or suspending the effectiveness of Purchase Price for each month that the Registration Statement or a pro rata amount for the number of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With days in a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: month (i) make and keep public information available, as those terms are understood and defined in Rule 144, until has not been filed within twenty (20) days after the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notificationClosing Date, or (ii) 150 has not become effective within 180 days after of the initial filing Closing Date, unless the Registration Statement has not become effective as a result of the Purchaser's failure to provide information necessary for completion of the Registration Statement with the SECStatement.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) prepare and file with the SEC, within 90 days after the Closing Date, a registration statement on Form S-3 (the "Registration Statement"), to enable the resale of the Shares by the Investors from time to time on a national securities exchange or in privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 60 days after following the Closing Date;
Date (c) use its reasonable best efforts to the “Filing Deadline”), prepare and file with the SEC such amendments and supplements Commission a Registration Statement on any form under the Securities Act that the Company is then eligible to use (subject to Section 7.1(f)) relating to the resale of the Registrable Securities (as defined below) by the Purchasers from time to time that will become effective no later than 60 days following the Filing Deadline (the “Effectiveness Deadline”); provided, however, that in the event the Company is notified by the Commission that the Registration Statement will not be reviewed or is no longer subject to further review and comments, the Prospectus used in connection therewith Effectiveness Deadline as may be necessary to keep the such Registration Statement current and effective for a period not exceeding, with respect to shall be the Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) fifth Business Day following the date on which the Investor may sell Company is so notified in writing if such date precedes the dates otherwise required above. The Company shall immediately notify the Purchasers via email of the effectiveness of a Registration Statement on the same trading day that the Company has received confirmation of effectiveness from the Commission. “Registrable Securities” means, as of any date of determination, all Shares and any securities issued or then held by issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the Investor foregoing; provided, however, that a security shall cease to be a Registrable Security upon the earliest of: (i) a sale pursuant to an effective Registration Statement or Rule 144 under the Securities Act, (ii) such security becoming eligible for resale without restriction by the Purchaser holding such securities pursuant to Rule 144, including without any volume limitations of or manner-of-sale restrictions and without the requirement to be in compliance with Rule 144(e144(c)(1) of (or any successor thereto) promulgated under the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to two years after the Investor with respect to the Shares registered under the Registration Statement such number date of copies effectiveness of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) as soon as practicable, but in any event no later than thirty (30) days following the Closing Date (the "REQUIRED FILING DATE"), prepare and file with the SEC, within 90 days after the Closing Date, a registration statement Registration Statement on Form S-3 (the "Registration Statement"), to enable the resale of the Shares by the Investors from time to time on a national securities exchange or in privately-negotiated transactionstime;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 (i) ninety (90) days after the Closing Date;Date if the Registration Statement is not reviewed by the SEC, or (ii) one hundred and twenty (120) days after the Closing Date if the Registration Statement is reviewed by the SEC (the "REQUIRED EFFECTIVE DATE"), such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 120-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement. In the event that the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the Required Effective Date (each a "REGISTRATION DEFAULT"), for each day during which the Registration Default remains uncured, the Company shall pay to each Investor in cash an amount equal to .0333% of the amount such Investor paid to acquire the Shares from the Company (the "LATE REGISTRATION PAYMENTS"); provided, however, that in no event shall the Late Registration Payments, if any, exceed in the aggregate five percent (5%) of the amount such Investor paid to acquire the Shares from the Company. The Late Registration Payments shall be payable as of the last day of the month in which a Registration Default occurs and the end of each succeeding month during all or part of which such Registration Default remains uncured.
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, ending on the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations pursuant to paragraph (k) of Rule 144(e) of 144 under the Securities Act, Act or any successor rule ("RULE 144") or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statementstatement or Rule 144, and to notify each Investor promptly upon the Registration Statement, and each post-effective amendment thereto, being declared effective by the SEC;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents Prospectus (including supplemental prospectuses) as the Investor may reasonably request, request in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, ; provided, however, that the Company shall not be required to 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;
(f) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph (a) through (e) of this Section 7.1 6.1 and the registration of the Shares pursuant to the Registration Statement; and;
(g) advise the Investors Investors, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company it will promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.; and
(h) With with a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to use its best efforts to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 6.1 that the Investor shall furnish to the Company such information regarding itself, the Shares to be sold by Investor, and the intended method of disposition of such securities as shall be required to effect the registration of the Shares. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor being is deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) prepare and file with the SEC, within 90 days after the Closing Date, a registration statement on Form S-3 (the "Registration Statement"), to enable the resale of the Shares by the Investors from time to time on a national securities exchange or in privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 days after the Closing Date;
(c) use its reasonable best efforts to cause the Registration Statement on Form S-1 (the “Registration Statement”) filed by the Company with the SEC pursuant to the Securities Act of 1933, as amended (the “Securities Act”) on January 27, 2005 with respect to the resale of the Preferred Shares (including the shares of Common Stock issuable upon conversion thereof, collectively together with the Preferred Shares, the “Shares”) by the Subscribers from time to time in accordance with the methods of distribution set forth in the Registration Statement to be declared effective by the SEC as soon as practicable;
(b) prepare and file with the SEC such amendments and supplements to the Registration Statement and such supplements to the Prospectus prospectus used in connection therewith as may be necessary in the opinion of the Company to keep the Registration Statement current and effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, until the earlier of (i) twenty-four months after the second anniversary effective date of the Closing DateRegistration Statement, (ii) such shorter period that will terminate when all the Shares covered by the Registration Statement have been sold pursuant thereto and (iii) the date on which the Investor Shares may sell all Shares then held be resold by the Investor Subscribers without restriction registration by the volume limitations reason of Rule 144(e144(k) under the Securities Act or any other rule of similar effect;
(c) furnish to each Subscriber (and to each underwriter, if any, of such Shares), at least one conformed copy of the Securities ActRegistration Statement and any post-effective amendment thereto, including financial statements (but excluding all schedules, all documents incorporated or (iii) such time as deemed incorporated therein by reference and all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statementexhibits);
(d) furnish to the Investor Subscribers with respect to the Shares registered under the Registration Statement (and to each underwriter, if any, of such Shares) such reasonable number of copies of the Registration Statement, Prospectuses prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents any amendments or supplements thereto as the Investor each Subscriber may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, Subscribers; provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses prospectuses to the Investor any Subscriber shall be subject to the receipt by the Company of reasonable assurances from the Investor Subscriber (which assurances are deemed received upon execution of this Agreement by such Subscriber) that the Investor Subscriber 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 such Prospectuses or Preliminary Prospectusesprospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified jurisdictions within the United States as the Subscribers reasonably request in writing by the Investor, writing; provided, however, that the Company shall not be required to qualify generally to do business or consent take any action which would subject it to general service of process or taxation in any jurisdiction in which it is not now so qualified or has not so consented;subject; and
(f) bear all expenses in connection with the preparation and filing of the Registration Statement and the procedures in paragraph paragraphs (a) through (e) of this Section 7.1 1.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice , other than fees and expenses, if any, of counsel or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available other advisers to the Investor the benefits of Rule 144 (Subscribers or its successor rule) underwriting discounts, brokerage fees, commissions and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notificationstock transfer taxes incurred by, or (ii) 150 days after the initial filing of the Registration Statement with the SECapplicable to, any Subscriber.
Appears in 1 contract
Samples: Registration Rights Agreement (Oglebay Norton Co /Ohio/)
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) subject to receipt of necessary information from the Investors, prepare and file with the SEC, within 90 as soon as practicable, but in no event later than thirty (30) calendar days after the Closing Date, a registration statement on Form S-3 (the "Registration Statement"), ) to enable the resale of the Common Stock issuable upon conversion of the Shares and the Warrant Shares (collectively, the "Registrable Securities") by the Investors from time to time on a national securities exchange through the automated quotation system of The Nasdaq Stock Market or in privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 ninety (90) calendar days after the Closing DateRegistration Statement is filed by the Company;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to the each Investor's Shares purchased hereunderRegistrable Securities, the earlier earliest of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares Registrable Securities then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, Act or (iii) such time as all Shares Securities purchased by such Investor in this Offering and all Registrable Securities have been sold pursuant to a registration statementby such Investor;
(d) furnish to the Investor with respect to the Shares Registrable Securities registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses (including supplemental prospectuses) and preliminary versions of the Prospectus filed with the SEC ("Preliminary Prospectuses Prospectuses") in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares Registrable Securities by the Investor, provided, however, that unless waived by the Company in writing, the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states reasonably specified in writing by the InvestorInvestor prior to the effectiveness of the Registration Statement, provided, however, that the Company shall not be required to 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;
(f) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph (a) through (e) of this Section 7.1 6.1 and the registration of the Shares Registrable Securities pursuant to the Registration Statement; and
(g) advise the Investors Investors, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company it will promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares Securities and Registrable Securities may be resold pursuant to Rule 144(k144(e) or any other rule of similar effect or (B) such date as all of the Investor's Shares Securities and Registrable Securities shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any SharesSecurities and Registrable Securities, (A) a written statement by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares Securities and Registrable Securities without registration. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 6.1 that the Investor shall furnish to the Company such information regarding itself, the Registrable Securities to be sold by the Investor, and the intended method of disposition of such securities as shall be required to effect the registration of the Shares. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Samples: Preferred Stock and Warrant Purchase Agreement (Cornerstone Equity Investors Iv Lp)
Registration Procedures and Expenses. The If and whenever the Company shall: ------------------------------------is required by the provisions of Section 4, 5 or 6 hereof to use its best efforts to effect the registration of any of the Restricted Stock under the Securities Act, the Company will, as expeditiously as possible:
(a) prepare (and afford counsel for the selling holders reasonable opportunity to review and comment thereon) and file with the SEC, within 90 days after the Closing Date, Commission a registration statement (which, in the case of an underwritten public offering pursuant to Section 4 hereof, shall be on Form S-3 (S-1 or another form of general applicability satisfactory to the "Registration Statement"), managing underwriter selected as therein provided) with respect to enable such securities and use its best efforts to cause such registration statement to become and remain effective for the resale period of the Shares by the Investors from time to time on a national securities exchange or in privately-negotiated transactionsdistribution contemplated thereby (determined as hereinafter provided);
(b) use its prepare (and afford counsel for the selling holders reasonable best efforts, subject opportunity to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 days after the Closing Date;
(creview and comment thereon) use its reasonable best efforts to prepare and file with the SEC Commission such amendments and supplements to the Registration Statement such registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the Registration Statement current and such registration statement effective for a the period not exceeding, specified in paragraph (a) above and as to comply with the provisions of the Securities Act with respect to the Investor's Shares purchased hereunder, the earlier disposition of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased Restricted Stock covered by such Investor registration statement in this Offering have been sold pursuant to a accordance with the sellers' intended method of disposition set forth in such registration statementstatement for such period;
(dc) furnish to the Investor with respect each seller and to the Shares registered under the Registration Statement each underwriter such number of copies of the Registration Statement, Prospectuses registration statement and Preliminary Prospectuses in conformity with the requirements of the Securities Act and prospectus included therein (including each preliminary prospectus) as such other documents as the Investor persons may reasonably request, request in order to facilitate the public sale or other disposition of all the Restricted Stock covered by such registration statement;
(d) use its best efforts to register or qualify the Restricted Stock covered by such registration statement under the securities or blue sky laws of such jurisdictions as the sellers of Restricted Stock or, in the case of an underwritten public offering, the managing underwriter, shall reasonably request (provided that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service of process in any jurisdiction);
(e) immediately notify each seller under such registration statement and each underwriter, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the Shares by happening of any event as a result of which the Investorprospectus contained in such registration statement, providedas then in effect, however, that 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 obligation statements therein not misleading in the light of the Company circumstances then existing;
(f) use its best efforts (if the offering is underwritten) to deliver copies furnish, at the request of Prospectuses or Preliminary Prospectuses any seller, on the date that Restricted Stock is delivered to the Investor shall be subject underwriters for sale pursuant to such registration: (i)an opinion dated such date of counsel representing the Company for the purposes of such registration, addressed to the receipt by underwriters and to such seller, stating that such registration statement has become effective under the Company Securities Act and that (A)to the best knowledge of reasonable assurances from such counsel, no stop order suspending the Investor effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Investor will Securities Act, (B)the registration statement, the related prospectus, and each amendment or supplement thereof, comply as to form in all material respects with the applicable provisions requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder (except that such counsel need express no opinion as to financial statements, the notes thereto, and the financial schedules and other financial and statistical data contained therein) and (C)to such other effects as may reasonably be requested by counsel for the underwriters or by such seller or its counsel and (ii)a letter dated such date from the independent public accountants retained by the Company, addressed to the underwriters, stating that they are independent public accountants within the meaning of the Securities Act and that, in the opinion of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required accountants, the financial statements of the Company for normal blue sky clearance included in states specified the registration statement or the prospectus, or any amendment or supplement thereof, comply as to form in writing by the Investor, provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection material respects with the procedures in paragraph applicable accounting requirements of the Securities Act, and such letter shall additionally cover such other financial matters (aincluding information as to the period ending no more than five business days prior to the date of such letter) through (e) of this Section 7.1 and with respect to the registration in respect of the Shares pursuant to the Registration Statement; andwhich such letter is being given as such underwriters or seller may reasonably request;
(g) make available for inspection by each seller, any underwriter participating in any distribution pursuant to such registration statement, and any attorney, accountant or other agent retained by such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement and permit such seller, attorney, accountant or agent to participate in the preparation of such registration statement;
(h) use its best efforts to cause the Conversion Shares to be listed for quotation on the Nasdaq National Market or other stock exchange or trading system on which the Common Stock primarily trades;
(i) advise the Investors each seller promptly after it shall receive the Company received notice or obtain obtains knowledge thereof, of the issuance of any stop order by the SEC delaying or Commission suspending the effectiveness of the Registration Statement such registration statement or of the initiation or threatening of any proceeding for that purpose; purpose and the Company will promptly use its good faith, reasonable efforts to prevent the issuance of any stop order or to obtain its prompt withdrawal at the earliest possible moment if such stop order should be issued.;
(hj) With provide and cause to be maintained a view to making transfer agent for all Conversion Shares covered by such registration statement from and after a date not later than the effective date of such registration statement; and
(k) make available to its security holders, as soon as practicable, an earnings statement covering a period of at least twelve months which satisfies the Investor provisions of Section 11(a) of the benefits Securities Act and Rule 158 thereunder. For purposes of Rule 144 paragraphs (or its successor rulea) and (b) above and of Section4(c) hereof, the period of distribution of Restricted Stock in a firm commitment underwritten public offering shall be deemed to extend until each underwriter has completed the distribution of all securities purchased by it, and the period of distribution of Restricted Stock in any other rule or regulation of the SEC that may at any time permit the Investor registration shall be deemed to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, extend until the earlier of (A) such the sale of all Restricted Stock covered thereby or six months after the effective date as all thereof. In connection with each registration hereunder, the selling holders of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) Restricted Stock will furnish to the Investor upon requestCompany in writing such information with respect to themselves and the proposed distribution by them as shall be reasonably necessary in order to assure compliance with federal and applicable state securities laws. In connection with each registration pursuant to Sections4, as long as 5 and 6 hereof covering an underwritten public offering, the Investor owns any Shares, (A) Company agrees to enter into a written statement by the Company that it has complied agreement with the reporting requirements of managing underwriter selected in the Exchange Act, (B) a copy manner herein provided in such form and containing such provisions as are customary in the securities business for such an arrangement between major underwriters and companies of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, size and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunderinvestment stature, provided, however, that if such agreement shall not contain any such provision applicable to the Company receives notification from which is inconsistent with the SEC provisions hereof and provided, further, however, that the Investor is deemed an underwriter, then time and place of the period by which the Company is obligated to submit an acceleration request to the SEC closing under said agreement shall be extended to as mutually agreed upon among the earlier Company, such managing underwriter and the selling holders of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECRestricted Stock.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------
(a) The Company shall prepare and file with the SEC, within 90 as promptly as reasonably practicable following Closing, but in no event later than 15 business days after the Closing Datefollowing Closing, a registration statement on Form S-3 (the "Registration Statement"or any successor to Form S-3), to enable covering the resale of the Shares by Registrable Securities (as defined below) (the Investors from time to time on a national securities exchange or in privately-negotiated transactions;
(b“S-3 Registration Statement”) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective and as soon as practicable, reasonably practicable thereafter but in no event later than 150 30 days after following the Closing Date;
filing of the S-3 Registration Statement (c90 days in the event of a full review of the S-3 Registration Statement by the SEC), to effect such registration and any related qualification or compliance with respect to all Registrable Securities held by the Purchasers. For purposes of this Agreement, the term “Registrable Securities” shall mean (i) use its reasonable best efforts the Shares; and (ii) any Common Stock of the Company issued as (or issuable upon the conversion or exercise of any warrant, right or other security which is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of, any Shares. In the event that Form S-3 (or any successor form) is or becomes unavailable to register the resale of the Registrable Securities at any time prior to the expiration of the Purchasers’ registration rights pursuant to Section 6.6, the Company shall prepare and file with the SEC SEC, as promptly as reasonably practicable following the Closing but in no event later than 15 business days following Closing, a registration statement on Form S-1 (or any successor to Form S-1), covering the resale of the Registrable Securities (the “S-1 Registration Statement” and collectively the S-3 Registration Statement, the “Registration Statement”) and as soon as reasonably practicable thereafter but in no event later than 30 days following the filing of the S-1 Registration Statement (90 days in the event of a full review of the S-1 Registration Statement by the SEC), to effect such amendments registration and supplements any related qualification or compliance with respect to all Registrable Securities held by the Purchasers. If the Registration Statement and has not been declared effective by the Prospectus used in connection therewith as may be necessary to keep SEC on or before the date that is 30 days after the filing date of the Registration Statement, or 90 days after the filing of the Registration Statement current in the event of a full review of the Registration Statement by the SEC (the “Required Effective Date”), the Company shall, on the business day immediately following the Required Effective Date and effective for each 30th day thereafter, make a period not exceeding, with respect payment to the Investor's Purchasers as partial liquidated damages for such delay ( together, the “Late Registration Payments”) equal to 1% of the Purchase Price paid for the Shares purchased hereunder, then owned by the Purchasers until the Registration Statement is declared effective by the SEC. Late Registration Payments will be prorated on a daily basis during each 30-day period and will be paid to the Purchasers by wire transfer or check within five business days after the earlier of (i) the second anniversary end of each 30 day period following the Closing Date, Required Effective Date or (ii) the effective date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of . If the Company fails to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 pay any use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares liquidated damages pursuant to this section in full within seven days after the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and date payable, the Company will promptly use its reasonable efforts pay interest thereon at a rate of 12% per annum (or such lesser maximum amount that is permitted to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(hpaid by applicable law) With a view to making available to the Investor Purchasers, accruing daily from the benefits of Rule 144 (or its successor rule) date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. “Business day” means any day except Saturday, Sunday and any other rule or regulation of day that is a federal legal holiday in the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECUnited States.
Appears in 1 contract
Registration Procedures and Expenses. The If and whenever the ------------------------------------ Company shall: ------------------------------------is required by the provisions of Section 2.2 hereof to use its reasonable efforts to effect the registration of Registrable Securities under the Securities Act, the Company will, as reasonably promptly as possible:
(a) prepare and file with the SEC, within 90 days after the Closing Date, Commission a registration statement (which shall be on Form S-3 (the "Registration Statement"), form of general applicability which the Company is eligible to enable use under the resale Securities Act satisfactory to the managing underwriter selected as therein provided with respect to such securities and use its reasonable efforts to cause such registration statement to become and remain effective for the period of the Shares distribution contemplated thereby (determined as hereinafter provided) and take all actions reasonably requested by Motorola to facilitate the Investors from time to time on a national securities exchange sale of all or in privately-negotiated transactionssuch portion of the Registrable Securities;
(b) use its reasonable best efforts, subject to receipt notify Motorola of necessary information from any request of the Investors, to cause Commission for the Registration Statement to become effective as soon as practicable, but in no event later than 150 days after the Closing Date;
(c) use its reasonable best efforts to amending or supplementing of such registration statement or prospectus and prepare and file with the SEC Commission such amendments (including post-effective amendments) and supplements to the Registration Statement such registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the Registration Statement current and such registration statement effective for a the period not exceeding, of distribution contemplated thereby (determined as hereinafter provided) and comply with respect to the Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) provisions of the Securities Act, its rules and regulations and any other governmental rules, regulations or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor requirements with respect to the Shares registered under disposition of all Registrable Securities covered by such registration statement in accordance with the Registration Statement sellers' intended method of disposition set forth in such registration statement for such period;
(c) furnish to each seller such number of copies of the Registration Statementregistration statement and the prospectus included therein (including each preliminary prospectus), Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act all amendments and supplements to such other documents documents, as the Investor such Persons may reasonably request, request in order to facilitate the public sale or other disposition of all or any of the Shares Registrable Securities covered by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses such registration statement;
(d) to the Investor shall be subject extent applicable, use its reasonable efforts to register or qualify the receipt Registrable Securities covered by such registration statement under the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary Prospectuses;
(e) file documents required jurisdictions as the sellers of the Company for normal blue sky clearance in states specified in writing by the Investor, Registrable Securities shall reasonably request; provided, -------- however, that the Company shall not for any such purpose be required to ------- qualify generally to do transact business as a foreign corporation in any jurisdiction where it is not so qualified or to consent to general service of process in any jurisdiction such jurisdiction;
(e) immediately notify each seller under such registration statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus contained in which it is such 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 now misleading in the light of the circumstances then existing, and the Company will promptly prepare a supplement or amendment to such prospectus so qualified that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or has omit to state any material fact required to be stated therein or necessary to make the statements therein not so consentedmisleading;
(f) bear all expenses notify each seller of Registrable Securities participating in connection with the procedures in paragraph (a) through (e) disposition of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance such Registrable Securities of any stop order by the SEC delaying or suspending the other suspension of effectiveness of the Registration Statement registration or of the initiation or threatening of any proceeding for that purpose; and the Company will promptly use its ;
(g) make every reasonable efforts effort to prevent the issuance of any stop order or to obtain its the withdrawal of any such order or other suspension of the effectiveness of the registration statement at the earliest possible moment if such stop order should be issued.moment;
(h) With as promptly as practicable after filing with the Commission of any document which is incorporated by reference into a view registration statement, deliver a copy of such document to making available each seller of Registrable Securities;
(i) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such registration statement;
(j) use reasonable efforts to list and keep listed all Registrable Securities covered by such registration statement on any national securities exchange or quotation system on which such Registrable Securities is then listed or quoted, if any; and
(k) cause its subsidiaries to take all action necessary to effect the registration of Registrable Securities contemplated hereby, including filing any required financial information. For purposes of paragraphs (a) and (b) of this Section and Section 2.2 hereof, the period of distribution of Common Stock in a firm commitment underwritten public offering shall be deemed to extend until the later of the date each underwriter has completed the distribution of all Common Stock purchased by it and the termination of the period in which prospectuses must be delivered under Rule 174 promulgated under the Securities Act. It shall be a condition precedent to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation obligations of the SEC that may at Company to take any time permit the Investor action pursuant to sell Shares this Article II with respect to the Registrable Securities of Motorola that Motorola shall furnish to the Company in writing such information with respect to Motorola and the proposed distribution by Motorola as shall be reasonably necessary in order to effect the registration of Motorola's Registrable Securities and assure compliance with federal and applicable state securities laws. In connection with each registration pursuant to Section 2.2 hereof covering an underwritten public without registrationoffering, the Company covenants and agrees to: (i) make Motorola agree to enter into such underwriting agreements, lock-up agreements, power of attorney and keep public information available, as those terms are understood custody agreements and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file agreements with the SEC managing underwriter selected in a timely the manner all reports herein and other documents required of appropriate parties provided in such form and containing such provisions as are customary in the Company under the Exchange Act; securities business for such an arrangement between major underwriters, others and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy companies of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Qsize and investment stature, and (C) provided that, unless consented to by the Company, such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of agreement shall not contain any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve provision applicable to the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor which is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement inconsistent with the SECprovisions hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Pinnacle Holdings Inc)
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) prepare and file a Resale Registration Statement (the “Mandatory Registration Statement”) with the SEC, within 90 Commission no later than the date thirty (30) days after following the Closing Date, a registration statement on Form S-3 Date (the "Registration Statement"“Filing Date”), to enable the resale register all of the Registrable Shares by on Form F-3 under the Investors from time Securities Act (providing for shelf registration of such Registrable Shares under Commission Rule 415), and to time on provide each Purchaser with a national securities exchange or in privately-negotiated transactionscopy of such draft Mandatory Registration Statement for review not less than two Business Days before filing;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investors, efforts to cause the such Mandatory Registration Statement to become be declared effective within (i) 30 days following the Filing Date (or, in the event the Staff reviews and has written comments to the Mandatory Registration Statement, within 75 days following the Filing Date) (the “Effectiveness Deadline”), such efforts to include, without limiting the generality of the foregoing, preparing and filing with the Commission any financial statements or other information that is required to be filed prior to the effectiveness of such Mandatory Registration Statement (for purposes of clarification, any failure by the Company to file the Resale Registration Statement by the Filing Date or to effect such Resale Registration Statement by the Effectiveness Date shall not otherwise relieve the Company of its obligations to file or effect the Resale Registration Statement as soon as practicable, but set forth above in no event later than 150 days after the Closing Datethis Section 4);
(c) notwithstanding anything contained in this Agreement to the contrary, in the event that the Commission limits the amount of Registrable Shares or otherwise requires a reduction in the number of Registrable Shares that may be included and sold by the Purchasers in the Mandatory Registration Statement (in each case, subject to Section 4.3), then the Company shall prepare and file (i) within 20 Business Days of the first date or time that such excluded Registrable Shares may then be included in a Resale Registration Statement if the Commission shall have notified the Company that certain Registrable Shares were not eligible for inclusion in the Resale Registration Statement or (ii) in all other cases, within 60 days following the date that the Company becomes aware that such additional Resale Registration Statement is required (the “Additional Filing Date”), a Resale Registration Statement (any such Resale Registration Statement registering such excluded Registrable Shares, an “Additional Registration Statement” and, together with the Mandatory Registration Statement, a “Resale Registration Statement”) to register any Registrable Shares that have been excluded (or, if applicable, the maximum number of such excluded Registrable Shares that the Company is permitted to register for resale on such Additional Registration Statement consistent with Commission guidance), if any, from being registered on the Mandatory Registration Statement;
(d) use its reasonable best efforts to cause any such Additional Registration Statement to be declared effective as promptly as practicable following the Additional Filing Date, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the Commission any financial statements or other information that is required to be filed prior to the effectiveness of any such Additional Registration Statement;
(e) prepare and file with the SEC Commission such amendments and supplements to the such Resale Registration Statement Statements and the Prospectus prospectus used in connection therewith as may be necessary to keep the such Resale Registration Statement current Statements continuously effective and effective for free from any material misstatement or omission to state a period not exceedingmaterial fact therein until termination of such obligation as provided in Section 4.6 below, with respect subject to the Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold Company’s right to suspend pursuant to a registration statementSection 4.5;
(df) furnish to the Investor with respect to the Shares registered under the Registration Statement Purchasers such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor Purchasers may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply with the applicable provisions of the Securities Act and of Purchasers;
(g) file such other securities or blue sky laws documents as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal securities law clearance for the resale of the Registrable Shares in such states of the United States as may be reasonably requested by the Purchasers and use its commercially reasonable efforts to maintain such blue sky clearance in states specified in writing by qualifications during the Investor, period the Company is required to maintain effectiveness of the Resale Registration Statements; provided, however, that the Company shall not be required in connection with this Section 4.2(g) to qualify to do business as a foreign corporation or execute a general consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(fh) upon notification by the Commission that that the Resale Registration Statement has been declared effective by the Commission, the Company shall file the final prospectus under Rule 424 of the Securities Act (“Rule 424”) within the applicable time period prescribed by Rule 424;
(i) advise the Purchasers as expeditiously as possible, but in any event within five (5) Business Days:
(i) of the effectiveness of the Resale Registration Statement or any post-effective amendments thereto;
(ii) of any request by the Commission for amendments to the Resale Registration Statement or amendments to the prospectus or for additional information relating thereto;
(iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Resale Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Registrable Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes; and
(iv) of the existence of any fact and the happening of any event that makes any statement of a material fact made in the Resale Registration Statement, the prospectus and amendment or supplement thereto, or any document incorporated by reference therein, untrue, or that requires the making of any additions to or changes in the Resale Registration Statement or the prospectus in order to make the statements therein not misleading. Notwithstanding anything to the contrary set forth herein, the Company shall not, when so advising Purchaser of such events, provide Purchaser with any material, nonpublic information regarding the Company or its subsidiaries other than to the extent that providing notice to Purchaser of the occurrence of the events listed in (i) through (iv) above constitutes material, nonpublic information regarding the Company; and
(j) bear all expenses in connection with the procedures in paragraph paragraphs (a) through (ei) of this Section 7.1 4.2 and the registration of the Registrable Shares pursuant to on such Resale Registration Statement and the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge satisfaction of the issuance blue sky laws of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registrationstates. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, providedIt is understood, however, that if that, except as otherwise provided in this Section, the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC Purchasers shall be extended to responsible for all of their own costs and expenses, including the earlier fees of (i) their counsel, fees charged by the 90th day after such SEC notification, or (ii) 150 days after the initial filing Depositary and share transfer taxes payable on resale of any of the Registration Statement with the SECRegistrable Shares by them.
Appears in 1 contract
Samples: Securities Purchase Agreement (ASLAN Pharmaceuticals LTD)
Registration Procedures and Expenses. The If and whenever the Company shall: ------------------------------------is required by the provisions of Section 9.1 hereof to use its best efforts to effect the registration of any of the Shares under the Act, the Company will, as expeditiously as possible:
(a) prepare and file with the SECSEC a Registration Statement (which, within 90 days after in the Closing Datecase of an underwritten public offering, a registration statement shall be on Form S-3 (S-1 or other form of general applicability satisfactory to the "managing underwriter selected as therein provided) with respect to such securities and use its best efforts to cause such Registration Statement"), Statement to enable become and remain effective for the resale period of the Shares by the Investors from time to time on a national securities exchange or in privately-negotiated transactionsdistribution contemplated thereby (determined as hereinafter provided);
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 days after the Closing Date;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the such Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the such Registration Statement current and effective for a the period not exceeding, hereinafter provided and as shall comply with the provisions of the Act with respect to the Investor's Shares purchased hereunder, the earlier disposition of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased covered by such Investor Registration Statement in this Offering have been sold pursuant to a registration statementaccordance with the sellers' intended method of disposition set forth in such Registration Statement for such period;
(dc) furnish to the Investor with respect each seller and to the Shares registered under the Registration Statement each underwriter such number of copies of the Registration Statement, Prospectuses Statement and Preliminary Prospectuses in conformity with the requirements of the Securities Act and prospectus included therein (including each preliminary prospectus) as such other documents as the Investor persons may reasonably request, request in order to facilitate the public sale or other disposition of all or any of the Shares covered by such Registration Statement;
(d) use its best efforts to register or qualify the Investor, provided, however, that Shares covered by such Registration Statement under the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary Prospectusesjurisdictions as the sellers of Shares or, in the case of an underwritten public offering, the managing underwriter, shall reasonably request;
(e) file documents immediately notify each seller under such Registration Statement and each underwriter, at any time when a prospectus relating thereto is required to be delivered under the Act, of the Company for normal blue sky clearance happening of any event as a result of which the prospectus contained in states specified such Registration Statement, as then in writing by the Investoreffect, provided, however, that the Company shall not be includes an untrue statement of a material fact or omits to state any material fact required to qualify be stated therein or necessary to do business or consent to service make the statements therein not misleading in the light of process in any jurisdiction in which it is not now so qualified or has not so consentedthe circumstances then existing;
(f) bear all expenses in connection with use its best efforts (if the procedures in paragraph (aoffering is underwritten) through (e) to furnish, at the request of this Section 7.1 and any seller, on the registration of date that Shares are delivered to the Shares underwriters for sale pursuant to such registration: (i) an opinion dated such date of counsel representing the Company for the purposes of such registration, addressed to the underwriters and to such seller, stating that such Registration Statement has become effective under the Act and that (A) to the best knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, (B) the Registration Statement, the related prospectus, and each amendment or supplement thereof, comply as to form in all material respects with the requirements of the Act and the applicable rules and regulations of the SEC thereunder (except that such counsel need express no opinion as to financial statements contained therein) and (C) to such other effects as may reasonably be requested by counsel for the underwriters or by such seller or its counsel, and (ii) a letter dated such date from the independent public accountants retained by the Company, addressed to the underwriters and to such seller, stating that they are independent public accountants within the meaning of the Act and that, in the opinion of such accountants, the financial statements of the Company included in the Registration Statement or the prospectus, or any amendment or supplement thereof, comply as to form in all material respects with the applicable accounting requirements of the Act, and such letter shall additionally cover such other financial matters (including information as to the period ending no more than five business days prior to the date of such letter) with respect to the registration in respect of which such letter is being given as such underwriters or seller may reasonably request; and
(g) advise the Investors promptly after it shall receive notice make available for inspection by each seller, any underwriter participating in any distribution pursuant to such Registration Statement, and any attorney, accountant or obtain knowledge other agent retained by such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the issuance Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such Registration Statement. For purposes of any stop order Section 9.2(a) and (b) hereof, the period of distribution of Shares in a firm commitment underwritten public offering shall be deemed to extend until each underwriter has completed the distribution of all securities purchased by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; it, and the Company will promptly use its reasonable efforts to prevent the issuance period of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits distribution of Rule 144 (or its successor rule) and Shares in any other rule or regulation of the SEC that may at any time permit the Investor registration shall be deemed to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, extend until the earlier of (A) such the sale of all Shares covered thereby or nine months after the effective date as all thereof. In connection with each registration hereunder, the selling holders of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) will furnish to the Investor upon requestCompany in writing such information with respect to themselves and the proposed distribution by them as shall be reasonably necessary in order to assure compliance with federal and applicable state securities laws. In connection with each registration pursuant to Section 9.1 hereof covering an underwritten public offering, as long as the Investor owns any Shares, (A) Company agrees to enter into a written statement by the Company that it has complied agreement with the reporting requirements of managing underwriter selected in the Exchange Act, (B) a copy manner herein provided in such form and containing such provisions as are customary in the securities business for such an arrangement between major underwriters and companies of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Qsize and investment stature, and (C) provided that such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of agreement shall not contain any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve provision applicable to the Company of any obligations it has hereunderwhich is inconsistent with the provisions hereof and, further, provided, however, that if the time and place of the closing under said agreement shall be as mutually agreed upon between the Company receives notification from the SEC that the Investor is deemed an and such managing underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Samples: Senior Note (Telkonet Inc)
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) prepare and use its best efforts to file a Registration Statement with the SECSEC within ten (10) days following the Second Closing Date, within 90 but in no event after the date that is eighty (80) days after the First Closing Date (the “Filing Date”), a registration statement to register the Registrable Shares and shares of the Common Stock listed on Schedule 7.2 attached hereto on Form S-3 under the Securities Act (the "Registration Statement"), to enable the resale providing for shelf registration of such Registrable Shares and shares of the Common Stock listed on Schedule 7.2 under SEC Rule 415) or on such other form which is appropriate to register such Registrable Shares by the Investors for resale from time to time by the Purchasers; provided, however, if a Registration Statement covering the Registrable Shares is not filed with the SEC on or prior to the Filing Date, the Company will make payments to each Holder, as liquidated damages and not as a national securities exchange penalty, in an amount equal to one percent (1%) of the aggregate amount invested by such Holder (the amount invested by a Holder shall include the purchase price of the Common Shares acquired by such Holder and shall exclude any amount attributable to the Warrants acquired by such Holder pursuant to the Agreement) for each 30 day period (or in privately-negotiated transactionsa portion thereof) following the date by which such Registration Statement should have been filed for which no Registration Statement is filed with respect to the Registrable Securities;
(b) use its reasonable best efforts, subject to receipt of necessary information from the InvestorsPurchasers, to cause the any such Registration Statement filed pursuant to Section 7.2(a) above to become effective as soon promptly after filing of such Registration Statement as practicable, practicable but in no any event later than 150 by the date that is one hundred (100) days after following the First Closing Date; provided, however, that in the event that a Registration Statement is reviewed by the SEC, then such date shall be the date that is one hundred fifty (150) days following the First Closing Date. If (i) the Company fails to file with the SEC a request for acceleration in accordance with Rule 461 promulgated under the Securities Act, within five business days of the date that the Company is notified (orally or in writing, whichever is earlier) by the SEC that a Registration Statement will not be “reviewed,” or is not subject to further review, or (ii) the Registration Statement has not been declared effective by the appropriate date in the preceding sentence, then the Company will make payments to each Holder, as liquidated damages and not as a penalty, in an amount equal to one percent (1%) of the aggregate amount invested by such Holder (the amount invested by a Holder shall include the purchase price of the Shares acquired by such Holder and shall exclude any amount attributable to the Warrants acquired by such Holder pursuant to the Purchase Agreement) for each thirty (30) day period (or a portion thereof) following the date by which such Registration Statement should have been effective as described above had the Company used its best efforts to have the Registration Statement declared effective;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the such Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the such Registration Statement current and continuously effective for a period not exceedinguntil termination of such obligation as provided in Section 7.6 below, with respect subject to the Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold Company’s right to suspend pursuant to a registration statementSection 7.5;
(d) furnish to the Investor with respect each Purchaser (and to the Shares registered under the Registration Statement each underwriter, if any, of such Registrable Shares) such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor Purchasers may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Shares by the InvestorPurchasers, provided, however, that the obligation including a copy of the Company prospectus to deliver copies of Prospectuses or Preliminary Prospectuses be furnished to the Investor shall be subject each Purchaser pursuant to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary ProspectusesSection 7.2(g);
(e) file such documents as may be required of the Company for normal blue sky securities law clearance for the resale of the Registrable Shares in such states specified in writing of the United States as may be reasonably requested by the Investor, each Purchaser; provided, however, that the Company shall not be required in connection with this paragraph (e) to qualify to do business as a foreign corporation or execute a general consent to service of process in any jurisdiction in which it is not now so qualified or has not so consentedjurisdiction;
(f) upon notification by the SEC that that the Registration Statement will not be reviewed or is no longer subject to further review and comments by the SEC, the Company shall within five business days request acceleration of such Registration Statement such that it becomes effective at 5:00 p.m. New York Time on the date that effectiveness is requested (the “Effective Date”);
(g) deliver to each Purchaser, by 9:00 a.m. New York time on the day following the Effective Date, without charge, an electronic copy of each prospectus or prospectuses (including each form of prospectus) and each amendment or supplement thereto. The Company hereby consents to the use of such prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such prospectus and any amendment or supplement thereto;
(h) advise each Purchaser promptly:
(i) of the effectiveness of the Registration Statement or any post-effective amendments thereto;
(ii) of any request by the SEC for amendments to the Registration Statement or amendments to the prospectus or for additional information relating thereto;
(iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Registrable Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes; and
(iv) of the existence of any fact and the happening of any event that makes any statement of a material fact made in the Registration Statement, the prospectus and amendment or supplement thereto, or any document incorporated by reference therein, untrue, or that requires the making of any additions to or changes in the Registration Statement or the prospectus in order to make the statements therein not misleading;
(i) use its best efforts to cause all Registrable Shares to be listed on each securities exchange, if any, on which equity securities by the Company are then listed;
(j) bear all expenses in connection with the procedures in paragraph paragraphs (a) through (eg) of this Section 7.1 7.2 and the registration of the Registrable Shares pursuant to on such Registration Statement and the Registration Statementsatisfaction of the blue sky laws of such states; and
(gk) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly otherwise use its commercially reasonable efforts to prevent make available to its security holders no later than the issuance Availability Date (as defined below), an earnings statement covering a period of any stop order or to obtain its withdrawal at least twelve (12) months, beginning after the earliest possible moment effective date of each Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act, including Rule 158 promulgated thereunder (for the purpose of this subsection 7.2(i), “Availability Date” means the 45th day following the end of the fourth fiscal quarter after the fiscal quarter that includes the effective date of such Registration Statement, except that, if such stop order should be issued.
(h) With a view to making available to fourth fiscal quarter is the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy last quarter of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q’s fiscal year, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) “Availability Date” means the 90th day after the end of such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECfourth fiscal quarter).
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) as soon as practicable, but in no event later than ten (10) business days following the Closing Date, prepare and file with the SEC, within 90 days after Commission the Closing Date, a registration statement Registration Statement on Form S-3 (relating to the "Registration Statement"), to enable the resale sale of the Shares by the Investors Purchaser and the Other Purchasers from time to time on a AMEX or the facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions;
(b) provide a draft copy of the Registration Statement to the Purchaser for its review and comment prior to filing the Registration Statement with the Commission;
(c) notify the Purchaser promptly upon being informed whether the staff or the Commission intends to review or not review the Registration Statement;
(d) file a request for acceleration of the Registration Statement with the Commission within three (3) business days after the date the Company receives notice from the staff of the Commission that the Commission does not intend to review the Registration Statement or has completed such review;
(e) use its reasonable best efforts, subject to receipt of necessary information from the InvestorsPurchasers, to cause the Commission to declare the Registration Statement to become effective as soon as practicable, but reasonably practicable and in no any event later than 150 within sixty (60) days after the Closing Date (the “Effectiveness Target Date”);
(cf) use its reasonable best efforts to promptly prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to until the Investor's Shares purchased hereunder, the earlier earliest of (i) two years after the second anniversary effective date of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities ActRegistration Statement, or (iiiii) such time as all the Shares purchased become eligible for resale by such Investor in this Offering have been sold non-affiliates of the Company pursuant to a registration statementRule 144(k) under the Securities Act;
(dg) furnish to the Investor Purchaser with respect to the Shares registered under the Registration Statement (and to each underwriter, if any, of such Shares) such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act prospectuses and such other documents as the Investor Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary ProspectusesPurchaser;
(eh) file documents required of the Company for normal blue sky Blue Sky clearance in states specified in writing by the Investor, Purchaser; provided, however, that the Company shall not be required to 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;
(fi) bear all expenses in connection with the procedures in paragraph paragraphs (a) through (eh) of this Section 7.1 8.1 and the registration of the Shares pursuant to the Registration Statement, other than fees and expenses, if any, of counsel or other advisers to the Purchaser or the Other Purchasers or underwriting discounts, brokerage fees and commissions incurred by the Purchaser or the Other Purchasers, if any;
(j) file a Form D with respect to the Shares as required under Regulation D and to provide a copy thereof to the Purchaser promptly after filing;
(k) issue a press release describing the transactions contemplated by this Agreement on or prior to the Closing Date; and
(gl) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of make available, while the Registration Statement is effective and available for resale, its Chief Executive Officer, Chief Financial Officer or of other appropriate representatives for questions regarding information which the initiation of Purchaser may reasonably request in order to fulfill any proceeding for that purpose; and due diligence obligation on its part. If the Company will promptly use its reasonable efforts to prevent Commission does not declare the issuance of any stop order or to obtain its withdrawal at Registration Statement effective by the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registrationEffectiveness Target Date, the Company covenants and agrees to: (i) make and keep public information availableshall become obligated to pay to the Purchaser an amount in cash, as those terms are understood liquidated damages and defined in Rule 144not as a penalty, until the earlier of (A) such date as all equivalent to 1% of the Investor's aggregate purchase price paid by the Purchaser for any Shares may be resold then held by the Purchaser or its affiliates for each full month that effectiveness is delayed beyond the Effectiveness Target Date (pro-rated on a daily basis for partial months). The Company shall pay in full any liquidated damages pursuant to Rule 144(k) or any other rule of similar effect or (B) such this Section 8.1 within 30 days after the date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of on which the Company under the Exchange Act; and (iii) furnish becomes obligated to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) pay such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registrationdamages. The Company understands that the Investor Purchaser disclaims being an underwriterunderwriter of the Shares, but the Investor Purchaser being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing . A draft of the proposed Registration Statement with is included in the SEC.Private Placement Memorandum and a questionnaire related thereto to be completed by the Purchaser is attached hereto as Appendix I.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) within 45 days of the Closing Date (the "FILING DEADLINE"), prepare and file with the SEC, within 90 days after the Closing Date, SEC a registration statement on Form S-3 Registration Statement (the "Registration StatementINITIAL REGISTRATION STATEMENT"), ) relating to enable the resale of the sum (the "REQUIRED REGISTRATION AMOUNT") of (i) the number of Shares and Warrant Shares issued to the New Investors and (ii) the number of shares of common stock and warrant shares of the Company issued to Aurarian pursuant to the Aurarian Financing (collectively, the "REGISTRABLE SECURITIES"). The Initial Registration Statement shall be on Form SB-2 (or on another appropriate form). Notwithstanding anything herein to the contrary, if the SEC prevents the Company from including the Required Registration Amount of Registrable Securities on the Initial Registration Statement due to limitations on the use of Rule 415 of the Securities Act or otherwise for the resale of the Registrable Securities by the New Investors from time and Aurarian (the Registrable Securities not included on such Registration Statement, the "CUTBACK SHARES"), the Initial Registration Statement shall register the resale of a number of Registrable Securities which is equal to time on a national securities exchange or the maximum number of shares as is permitted by the SEC. In such event, the number of Registrable Securities to be registered for the New Investors and Aurarian in privately-negotiated transactionsthe Initial Registration Statement shall be reduced PRO RATA among all New Investors and Aurarian. With respect to the Cutback Shares, the Company shall file additional registration statements (each an "ADDITIONAL REGISTRATION STATEMENT" and with the Initial Registration Statement, the "REGISTRATION STATEMENT") successively trying to register the maximum number of remaining Cutback Shares until all of the Required Registration Amount of Registrable Securities have been registered with the SEC.;
(b) use its reasonable best commercial efforts, subject to receipt of necessary information from the InvestorsNew Investors and Aurarian, to cause the SEC to declare the Initial Registration Statement to become effective as soon as practicable, but in no event later than within 150 days after the Closing DateDate (or ten business days after receipt of notice of no review by the SEC) (the "EFFECTIVE DEADLINE");
(c) use its reasonable best efforts to promptly prepare and file with the SEC such amendments and supplements to the any Registration Statement filed pursuant to this Section 6.1 and the Prospectus prospectus used in connection therewith as may be necessary to keep the such Registration Statement current and effective for a period not exceeding, with respect to until the Investor's Shares purchased hereunder, the earlier earliest of (i) the second anniversary such time as all of the Closing DateRegistrable Securities have been sold pursuant to the Registration Statement, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, two years or (iii) such time as all Shares purchased by such Investor in this Offering have been sold of the Registrable Securities become eligible for resale without volume limitations pursuant to a registration statementRule 144 (including for purposes of this Agreement, any successor rule that may be adopted following the date hereof) under the Securities Act or any other rule of similar effect (the "EFFECTIVENESS PERIOD");
(d) furnish to the Investor New Investors and Aurarian with respect to the Shares Registrable Securities registered under the any Registration Statement (and to each underwriter, if any, of such Registrable Securities) such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act prospectuses and such other documents as the Investor New Investors may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares Registrable Securities by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply with the applicable provisions of the Securities Act New Investors and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary ProspectusesAuraruan;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph paragraphs (a) through (ef) of this Section 7.1 6.1 and the registration of the Shares Registrable Securities pursuant to the any Registration Statement; and, other than fees and expenses, if any, of counsel or other advisers to the New Investors and Aurarian or underwriting discounts, brokerage fees and commissions incurred by the New Investors or Aurarian, if any in connection with the offering of the shares pursuant to any Registration Statement;
(gf) advise in order to enable the New Investors promptly after it shall receive notice or obtain knowledge to sell the Registrable Securities under Rule 144 to the Securities Act ("RULE 144"), for a period of two years from the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly Closing Date, use its commercially reasonable efforts to prevent comply with the issuance requirements of any stop order or Rule 144, including without limitation, use its commercially reasonable efforts to obtain its withdrawal at comply with the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits requirements of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor with respect to sell Shares to the public without registration, information about the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) timely file with the SEC in a timely manner all reports and other documents required of to be filed by the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SEC.;
Appears in 1 contract
Samples: Securities Purchase Agreement (Bluefire Ethanol Fuels Inc)
Registration Procedures and Expenses. The Company shall: ------------------------------------
(a) prepare and use best efforts to file a Resale Registration Statement (the “Mandatory Registration Statement”) with the SECCommission on or before June 30, within 90 days after 2024 (the Closing “Filing Date, a registration statement ”) to register the applicable Registrable Shares on Form S-3 under the Securities Act (the "Registration Statement"providing for shelf registration of such Registrable Shares under Commission Rule 415), to enable the resale of the Shares by the Investors from time to time on a national securities exchange or in privately-negotiated transactions;
; (b) use its commercially reasonable best effortsefforts to cause each Mandatory Registration Statement to be declared effective within 30 days following each Filing Date (or, in the event the staff of the Commission (the “Staff”) reviews and has written comments to any Mandatory Registration Statement, within 90 days following the receipt of such written comments) (the earlier of the foregoing or the applicable date set forth in Section 4.2(h), the “Effectiveness Date”), such efforts to include, without limiting the generality of the foregoing, preparing and filing with the Commission any financial statements or other information that is required to be filed prior to the effectiveness of such Mandatory Registration Statement; (c) notwithstanding anything contained in this Agreement to the contrary, in the event that the Commission limits the amount of Registrable Shares or otherwise requires a reduction in the number of Registrable Shares that may be included and sold by the Purchasers in a Mandatory Registration Statement (in each case, subject to receipt of necessary information from Section 4.3), then the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 days after the Closing Date;
(c) use its reasonable best efforts to Company shall prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, the earlier of (i) the second anniversary within 20 business days of the Closing Date, (ii) the first date on which the Investor or time that such excluded Registrable Shares may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor be included in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered under the Resale Registration Statement such number of copies of if the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor 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 such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, however, that the Company shall not be required to 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;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares Commission shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by notified the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) certain Registrable Shares were not eligible for inclusion in such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, Resale Registration Statement or (ii) 150 in all other cases, within 30 days after following the initial filing of date that the Company becomes aware that such additional Resale Registration Statement is required (the “Additional Filing Date”), a Resale Registration Statement (any such Resale Registration Statement registering such excluded Registrable Shares, an “Additional Registration Statement” and, together with the SEC.Mandatory Registration Statement, a “Resale Registration Statement”) to register any Registrable Shares that have been excluded (or, if applicable, the maximum number of such excluded Registrable Shares that the Company is permitted to register for resale on such
Appears in 1 contract
Registration Procedures and Expenses. The Company shall: ------------------------------------:
(a) prepare and use its reasonable best efforts to file a Resale Registration Statement (the “Mandatory Registration Statement”) with the SEC, within 90 Commission on or before the date 60 days after following the earliest of (i) the Second Closing Date, (ii) the Outside Date and (iii) the date, if any, on which the Company determines not to proceed with the BLA Submission (the “Filing Date”) to register all of the Registrable Shares under the Securities Act (providing for registration of such Registrable Shares under Commission Rule 415), and to provide each Purchaser with a copy of such draft Mandatory Registration Statement for review not less than two Business Days before filing. The Mandatory Registration Statement referred to herein shall be on Form S-3. In the event that Form S-3 is not available for the registration of the resale of Registrable Shares hereunder, the Company shall (i) register the resale of the Registrable Shares on such other form as is available to the Company in accordance with the Securities Act and the rules promulgated thereunder and the Company shall undertake to register the Registrable Shares on Form S-3 as soon as practicable following the availability of such form, provided that the Company shall use its reasonable best efforts to maintain the effectiveness of the Resale Registration Statement then in effect until such time as a registration statement on Form S-3 (covering the "Registration Statement"), to enable the resale of the Shares Registrable Securities has been declared effective by the Investors from time to time on a national securities exchange or in privately-negotiated transactions;Commission.
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investors, efforts to cause the such Mandatory Registration Statement to become be declared effective as soon as practicablewithin (i) 90 days following the Filing Date (or, but in no the event later than the Staff reviews and has written comments to the Mandatory Registration Statement, within 150 days after following the Second Closing Date or, if earlier, 150 days following the Outside Date) (the “Effectiveness Deadline”), such efforts to include, without limiting the generality of the foregoing, preparing and filing with the Commission any financial statements or other information that is required to be filed prior to the effectiveness of such Mandatory Registration Statement (for purposes of clarification, any failure by the Company to file the Resale Registration Statement by the Filing Date or to effect such Resale Registration Statement by the Effectiveness Date shall not otherwise relieve the Company of its obligations to file or effect the Resale Registration Statement as set forth above in this Section 4);
(c) notwithstanding anything contained in this Agreement to the contrary, in the event that the Commission limits the amount of Registrable Shares or otherwise requires a reduction in the number of Registrable Shares that may be included and sold by the Purchasers in the Mandatory Registration Statement (in each case, subject to Section 4.3), then the Company shall prepare and file within 10 Business Days of the first date or time that such excluded Registrable Shares may then be included in a Resale Registration Statement if the Commission shall have notified the Company that certain Registrable Shares were not eligible for inclusion in the Resale Registration Statement (the “Additional Filing Date”), a Resale Registration Statement (any such Resale Registration Statement registering such excluded Registrable Shares, an “Additional Registration Statement”) to register any Registrable Shares that have been excluded (or, if applicable, the maximum number of such excluded Registrable Shares that the Company is permitted to register for resale on such Additional Registration Statement consistent with Commission guidance) from being registered on the Mandatory Registration Statement;
(d) use its reasonable best efforts to cause any such Additional Registration Statement to be declared effective as promptly as practicable following the Additional Filing Date, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the Commission any financial statements or other information that is required to be filed prior to the effectiveness of any such Additional Registration Statement;
(e) prepare and file with the SEC Commission such amendments and supplements to the such Resale Registration Statement Statements and the Prospectus prospectus used in connection therewith as may be necessary to keep the such Resale Registration Statement current Statements continuously effective and effective for free from any material misstatement or omission to state a period not exceedingmaterial fact therein until termination of such obligation as provided in Section 4.6 below, with respect subject to the Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold Company’s right to suspend pursuant to a registration statementSection 4.5;
(df) furnish to the Investor with respect to the Shares registered under the Registration Statement Purchasers such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor Purchasers may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply with the applicable provisions of the Securities Act and of Purchasers;
(g) file such other securities or blue sky laws documents as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal securities law clearance for the resale of the Registrable Shares in such states of the United States as may be reasonably requested by the Purchasers and use its commercially reasonable efforts to maintain such blue sky clearance in states specified in writing by qualifications during the Investor, period the Company is required to maintain effectiveness of the Resale Registration Statements; provided, however, that the Company shall not be required in connection with this Section 4.2(g) to qualify to do business as a foreign corporation or execute a general consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(fh) upon notification by the Commission that that the Resale Registration Statement has been declared effective by the Commission, the Company shall file the final prospectus under Rule 424 of the Securities Act (“Rule 424”) within the applicable time period prescribed by Rule 424;
(i) advise the Purchasers as expeditiously as possible, but in any event within five (5) Business Days:
(i) of the effectiveness of the Resale Registration Statement or any post-effective amendments thereto;
(ii) of any request by the Commission for amendments to the Resale Registration Statement or amendments to the prospectus or for additional information relating thereto;
(iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Resale Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Registrable Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes; and
(iv) of the existence of any fact and the happening of any event that makes any statement of a material fact made in the Resale Registration Statement, the prospectus and amendment or supplement thereto, or any document incorporated by reference therein, untrue, or that requires the making of any additions to or changes in the Resale Registration Statement or the prospectus in order to make the statements therein not misleading; and
(j) bear all expenses in connection with the procedures in paragraph paragraphs (a) through (ek) of this Section 7.1 4.2 and the registration of the Registrable Shares pursuant to on such Resale Registration Statement and the Registration Statement; and
(g) advise the Investors promptly after it shall receive notice or obtain knowledge satisfaction of the issuance blue sky laws of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issuedstates.
(hk) With a view Each Purchaser agrees to making available furnish to the Investor Company upon request a completed selling shareholder questionnaire in customary form that contains such information regarding Purchaser and the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required securities of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, held by Purchaser as long as the Investor owns any Shares, (A) a written statement shall be reasonably requested by the Company that it has complied with to effect the reporting requirements registration of the Exchange Act, Registrable Shares. A Purchaser shall provide such information to the Company at least two (B2) a copy Business Days prior to the first anticipated filing date of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such Shares without registrationResale Registration Statement. The Company understands shall not be required to include any Registrable Shares in the Resale Registration Statement for any Purchaser that has not provided such questionnaire. Each Purchaser, by its acceptance of the Investor disclaims being an underwriter, but Registrable Shares agrees to cooperate with the Investor being deemed an underwriter Company as reasonably requested by the SEC shall not relieve Company in connection with the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial preparation and filing of the a Resale Registration Statement with the SEChereunder.
Appears in 1 contract
Samples: Securities Purchase Agreement (Orchard Therapeutics PLC)
Registration Procedures and Expenses. The Company shall: ------------------------------------(a) If and whenever Buyer is required pursuant to the provisions of Section 8.02 hereof to use its diligent, good faith efforts to effect the registration of any Registration Stock under the Securities Act, Buyer will, as expeditiously as possible:
(ai) prepare and file with the SEC, within 90 days after the Closing Date, Commission a registration statement on Form S-3 with respect to such securities and use its diligent, good faith efforts to cause such registration statement to become and remain effective for the period specified in clause (the "Registration Statement"), to enable the resale of the Shares by the Investors from time to time on a national securities exchange or in privately-negotiated transactionsii) below;
(bii) use its reasonable best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than 150 days after the Closing Date;
(c) use its reasonable best efforts to prepare and file with the SEC Commission such amendments and supplements to the Registration Statement such registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such registration statement effective, and to comply with the Registration Statement current and effective for a period not exceeding, with respect to the Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) provisions of the Securities Act, for a period of not less than 90 days (or such lesser period in which all of the stock covered by such registration statement is in fact sold);
(iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement each selling stockholder and underwriter such number of copies of the Registration Statement, Prospectuses a prospectus and Preliminary Prospectuses preliminary prospectuses in conformity with the requirements of the Securities Act as may be reasonably requested, and such other documents as the Investor any underwriter for any such seller may reasonably request;
(iv) use its diligent, in order good faith efforts to facilitate register or qualify the public sale or other disposition of all or any of the Shares Registration Stock covered by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply with the applicable provisions of the Securities Act and of such registration statement under such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
jurisdictions as each such seller shall reasonably request (e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, however, that the Company shall not be required to qualify to do business or consent to the general service of process for all purposes in any jurisdiction in which where it is not now so qualified then qualified), and do any and all other acts and things which may be necessary or has not so consented;desirable to enable such seller to consummate the public sale or other disposition of such Registration Stock in such jurisdiction; and
(fv) bear all expenses notify, on a timely basis, each seller of Registration Stock covered by such registration statement, at any time when a prospectus relating to the Registration Stock covered by such registration statement is required to be delivered under the Securities Act within the appropriate period mentioned in connection with the procedures in paragraph clause (a) through (ea)(ii) of this Section 7.1 and the registration 8.03 of the Shares pursuant happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing and, at the request of such seller, prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the Registration Statement; and
(g) advise purchasers of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the Investors promptly after it shall receive notice or obtain knowledge statements therein not misleading in the light of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issuedcircumstances then existing.
(hb) With a view Buyer will pay all Registration Expenses in connection with each registration pursuant to making available Section 8.02 hereof. All Selling Expenses in connection with each registration pursuant to Section 8.02 hereof shall be borne by the seller or sellers pro-rata in proportion to the Investor the benefits of Rule 144 (securities covered thereby being sold or its successor rule) and any in such other rule or regulation of the SEC that proportion as they may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement agree. All expenses incurred by the Company that it has complied in complying with Section 8.02 hereof, including, without limitation, all registration and filing fees (including all expenses incident to filing with the reporting requirements National Association of the Exchange ActSecurities Dealers, (B) a copy Inc.), printing expenses, reasonable fees and disbursements of counsel for the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, securities law and (C) such other information as may be reasonably requested in order to avail blue sky fees and expenses and the Investor expenses of any rule regular and special audits incident to or regulation required by any such registration are herein called Registration Expenses, except that all underwriting discounts, selling commissions applicable to the sales, any state or federal transfer taxes payable with respect to the sales and all fees and disbursements of the SEC that permits counsel for the selling of any such Shares without registration. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 150 days after the initial filing of the Registration Statement with the SECshareholders are herein called Selling Expenses.
Appears in 1 contract
Samples: Stock Purchase Agreement (Norland Medical Systems Inc)
