Registration Procedures and Expenses. The Company shall: (a) subject to receipt of necessary information from the Investors, prepare and file with the Securities and Exchange Commission (“SEC”), within thirty (30) Calendar Days after the Closing Date (the “Required Filing Date”), a Registration Statement on Form S-3 to enable the resale of the Shares by the Investors from time to time; (b) use its 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 ninety (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (120) days after the Closing Date (the “Required Effective Date”). If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required Effective Date, then the Company shall, immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is due; (c) use its commercially reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus as may be necessary to keep the Registration Statement current and effective for a period ending on the earlier of (i) the date on which the Investor may sell Shares pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (ii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement 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 such number of copies (in paper or electronic version) of the Registration Statement and the Prospectus (including supplemental prospectuses), 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; (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 1 and the registration of the Shares pursuant to the Registration Statement; (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 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 a view to making available to the Investor the benefits of Rule 144 or other rule that may permit the Investor to sell Shares without registration, the Company 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 be resold pursuant to Rule 144(k) or (B) such date as all of the Investor’s Shares shall have been sold; (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 a written statement that the Company has complied with the reporting requirements of the Securities Act and the Exchange Act, a copy (in paper or electronic version) 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 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 1 that the Investor shall furnish to the Company such information and representations regarding Investor, 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 and/or sale under Rule 144. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 3 contracts
Samples: Registration Rights Agreement (Quantum Fuel Systems Technologies Worldwide Inc), Registration Rights Agreement (Quantum Fuel Systems Technologies Worldwide Inc), Registration Rights Agreement (Quantum Fuel Systems Technologies Worldwide Inc)
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of reasonably necessary information from the InvestorsHolder, prepare and file with the Securities and Exchange Commission (“SEC”), within thirty fifteen (3015) Calendar Days business days after the Closing Date closing price of the Company’s common stock (the “Required Common Stock”) for five (5) consecutive trading days is at least $5.00 per share, as reported by the domestic stock exchange or over-the-counter market on which the shares of Common Stock are listed (the “Filing Date”), a registration statement (the “Registration Statement 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) to enable the resale of the Shares by the Investors Holder from time to timetime of (x) the Warrant Shares issuable and (y) the shares of Common Stock issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing (collectively, the “Registrable Securities”);
(b) use its 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 ninety (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (120) days after the Closing Filing Date (the “Required Effective Date”). If the Registration Statement (ix) has not been filed by the applicable Required Filing Date or Effective Date, (iiy) 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 twenty (20) 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, then the Company shall, on the business day immediately following the Required Filing Date (if not then so filed) and the Date, Required Effective Date (if not then so effective)or Required Cure Date, as the case may be, and on each 30th day anniversary thereafter, make a payment to the Investor each Holder as partial compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.51%) of the Purchase Price purchase price paid for the Warrant Shares and the Warrant purchased by the Investor, Holder and not previously sold by the Holder or otherwise registered by the Company pursuant to Section 1(a) or Section 6 until the Registration Statement is filed or declared effective by the SEC. Notwithstanding , as the foregoingcase may be; provided, however, that in no event shall the total of all Late Registration Payments payments made pursuant to this paragraph (b), if any, exceed in the aggregate ten twelve percent (1012%) of such Purchase Pricepurchase price. Late Registration Payments, if any, Payments will be prorated on a daily basis during each 30 day period and will be paid to Investor the Holder by wire transfer or check within five (5) Business Days 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 that each payment is dueof the Registration Statement;
(c) 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 (the “Prospectus”) included as part of the Registration Statement as may be necessary to keep the Registration Statement current and effective for a period ending on the earlier of (i) the date on which the Investor Holder may sell Shares Registrable Securities pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (ii) such time as all Shares Registrable Securities purchased by such Investor Holder in this the Offering have been sold pursuant to a registration statement or Rule 144144 (the “Effectiveness Period”), and to notify each Investor Holder promptly upon the each Registration Statement and each post-effective amendment thereto, being declared effective by the SEC;
(d) furnish to the Investor any Holder such number of copies (in paper or electronic version) of the Registration Statement Statements and the Prospectus Prospectuses (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 InvestorHolder;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the InvestorHolder; 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 1 and the registration of the Shares Registrable Securities pursuant to the Registration StatementStatements;
(g) advise the InvestorsHolder, 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 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 a view to making available to the Investor Holder the benefits of Rule 144 or and any other rule or regulation of the SEC that may at any time permit the Investor 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 InvestorHolder’s Shares 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 InvestorHolder’s Shares Registrable Securities shall have been soldresold; (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 each Holder, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) 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 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 the Investor shall furnish to the Company such information and representations regarding Investor, 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 and/or sale under Rule 144. The Company understands that the Investor Holder disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor Holder is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 3 contracts
Samples: Registration Rights Agreement (Ediets Com Inc), Registration Rights Agreement (Prides Capital Partners, LLC), Registration Rights Agreement (Prides Capital Partners, LLC)
Registration Procedures and Expenses. The It is a condition precedent to the obligations of the Company shall:to take any action pursuant to this Section 7.1 that the Investor furnishes to the Company such information regarding itself, the Shares to be sold by the Investor, and the intended method of disposition of such securities as will be required to effect the registration of the Shares.
(a) subject Subject to receipt of necessary information from the InvestorsInvestor, the Company will use its best efforts to prepare and file with the Securities and Exchange Commission (“SEC”), within thirty (30) Calendar Days as soon as practicable, but in no event later than 60 days after the Closing Date (the “Required "Target Filing Date”"), a Registration Statement registration statement on Form S-3 S-1 (the "Registration Statement") to enable the resale of the Shares issued pursuant to this Agreement and upon exercise of the Warrants by the Investors Investor from time to time;time through the automated quotation system of the Nasdaq Stock Market or in privately-negotiated transactions.
(b) use its best efforts, subject Subject to receipt of necessary information from the InvestorsInvestor, the Company will use its best efforts to cause the Registration Statement to become effective as soon as practicable, but in no event later than ninety (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (120) 90 days after the Closing Date (the “Required Effective Date”). If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required Effective Date, then the Company shall, immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, until the Registration Statement is filed or declared effective by the SECCompany (the "Target Effective Date"). Notwithstanding the foregoing, in no event shall the total The plan of all Late Registration Payments exceed distribution disclosed in the aggregate ten percent (10%) of such Purchase Price. Late Registration PaymentsStatement shall be subject to the Investor's review, if any, will be prorated on a daily basis comment and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is due;approval.
(c) The Company will use its commercially 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 ending on not exceeding, with respect to each Investor's Shares purchased hereunder or acquired upon exercise of the earlier Warrants, the earliest of (i) the date on which third anniversary of the Investor may sell Shares pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) Closing Date, or (ii) such time as all Shares purchased by such Investor in this Offering Offering, including upon exercise of the Warrants, have been sold pursuant to a registration statement or pursuant to Rule 144, and to notify each Investor promptly upon 144 (the Registration Statement and each post-effective amendment thereto, being declared effective by the SEC;"Target Effective Period").
(d) The Company will furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies (in paper or electronic version) of the Registration Statement Statement, Prospectuses and Preliminary Prospectuses in conformity with the Prospectus (including supplemental prospectuses), 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 that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor will 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) The Company will file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor; provided, however, provided that 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) The Company will bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph paragraphs (a) through (e) of this Section 1 7.1 and the registration of the Shares pursuant to the Registration Statement;, including the fees and expenses of one counsel to the Investor and the other parties purchasing shares of the Company's Common Stock on the date hereof. All underwriting discounts, brokerage fees and commissions incurred by the Investor, if any, shall be borne by the Investor.
(g) The Company will advise the InvestorsInvestor, promptly after it shall receive receives notice or obtain obtains 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 it . 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; and.
(h) with a view to making available to the Investor the benefits of Rule 144 or other rule that may permit the Investor to sell Shares without registration, the Company 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 be resold pursuant to Rule 144(k) or (B) such date as all of the Investor’s Shares shall have been sold; (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 a written statement that the Company has complied with the reporting requirements of the Securities Act and the Exchange Act, a copy (in paper or electronic version) 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 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 1 that the Investor shall furnish to the Company such information and representations regarding Investor, 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 and/or sale under Rule 144. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination the Investor being deemed an underwriter by the SEC that the Investor is deemed an underwriter shall will not relieve the Company of any obligations it has hereunder. But 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 pursuant to Section 7.1(b) will be extended to the earlier of (a) the 90th day after such SEC notification or (b) 120 days after the initial filing of the Registration Statement with the SEC.
(i) If the Registration Statement has not become effective on or before the Target Effective Date, the Company shall pay liquidated damages to the Investor in an amount equal to 0.02% of the Purchase Price per day beginning on the Target Effective Date. If a stop order is imposed or if for any other reason the effectiveness of the Registration Statement is suspended during the Target Effective Period, then the Company shall pay liquidated damages to the Investor in an amount equal to 0.02% of the Purchase Price per day beginning on the date of such stop order or other suspension of effectiveness. Notwithstanding the two preceding sentences, the Investor will not be entitled to receive liquidated damages under this Agreement during a Suspension Period (as hereinafter defined). Liquidated damages shall be deemed to commence accruing on the day on which the event triggering such liquidated damages occurs. The liquidated damages to be paid to the Investor pursuant to this Section 7.1(i) shall cease to accrue (i) with respect to the liquidated damages for failure to have the Registration Statement declared effective on or prior to the Target Effective Date, on the day after the Registration Statement is declared effective, or (ii) with respect to the liquidated damages for the suspension of effectiveness, on the day after the reinstatement of effectiveness of the Registration Statement. Notwithstanding the foregoing, if the sole reason why the Registration Statement has not become effective on or before the Target Effective Date is because the Investor did not provide the Company with information which is required to be disclosed in the Registration Statement and which the Company reasonably requested the holder to so provide in writing at least five (5) days prior to the Target Effective Date, the Company's obligation to pay liquidated damages with respect thereto will not begin to accrue until five (5) business days after such information has been provided. The Company shall pay the liquidated damages due under this section at the end of each week during which such damages accrue and, to the extent such liquidated damages are not paid when due, shall thereafter accrue dividends at a rate equal to the U.S. prime rate plus the lesser of (i) 1% per annum and (ii) the maximum amount permitted by law. Liquidated damages shall be paid to the Investor by wire transfer in immediately available funds to the accounts designated by such holders. The parties hereto agree that the liquidated damages provided for in this Section 7.1(i) constitute a reasonable estimate of the damages that will be suffered by the holders by reason of the failure of the Registration Statement to be filed, to be declared effective and/or to remain effective, as the case may be, in accordance with this Agreement. The right of the Investor to be paid the liquidated damages provided for in this Section 7.1(i) is the exclusive remedy available to the Investor by reason of the failure of the Registration Statement to be filed, to be declared effective and/or to remain effective, as the case may be.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Energy Conversion Devices Inc), Stock Purchase Agreement (Energy Conversion Devices Inc)
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt as soon as practicable, but in no event later than fifteen days following (i) the First Closing Date, in the case of necessary information from the InvestorsFirst Tranche Shares, and (ii) the Second Closing Date, in the case of the Second Tranche Shares and the Option Shares (the “Filing Deadline”), prepare and file with the Securities and Exchange Commission (“SEC”), within thirty (30) Calendar Days after the Closing Date (the “Required Filing Date”), a Registration Statement on Form S-3 (or, if permissible under the Rules and Regulations, a post-effective amendment to enable a then effective registration statement on such form) relating to the resale of (x) the 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 timetime on 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 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 ninety (90applicable) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (120) effective within 30 days after the applicable Closing Date or, if the Commission reviews the Registration Statement, within 120 days after the applicable Closing Date (the “Required Effective DateDeadline”). If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required Effective Date, then the Company shall, immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is due;
(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 as may be necessary to keep the Registration Statement current and effective for a period ending on until (the earlier “Effectiveness Period”) the earliest of (i) two years after the effective date on which of the Investor may sell Shares pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) Registration Statement, or (ii) such time as the Registrable Securities become eligible for resale by non-affiliates pursuant to Rule 144(k) under the Securities Act 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 statement or Rule 144, and to notify each Investor promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective by the SECStatement;
(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 Shares and the Option Shares registered under the Registration Statement (and to each underwriter, if any, of such Shares and Option Shares) such number of copies (in paper or electronic version) of the Registration Statement prospectuses and the Prospectus (including supplemental prospectuses), 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 InvestorPurchaser;
(e) file documents required of the Company for normal blue sky Blue Sky clearance in 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;
(f) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph paragraphs (a) through (e) of this Section 1 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) advise file a Form D with respect to offer and sale of the Investors, Shares to the Purchaser as required under Regulation D under the Securities Act and to provide a copy thereof to the Purchaser 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 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 issuedfiling; and
(h) with a view to making available to file, not later than the Investor next business day after the benefits of Rule 144 or other rule that may permit the Investor to sell Shares without registration, the Company 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 be resold pursuant to Rule 144(k) or (B) such date as all of the Investor’s Shares shall have been sold; (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 a written statement that the Company has complied with the reporting requirements of the Securities Act and the Exchange ActClosing Date, a copy (in paper or electronic version) 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 that permits with the selling of any such Shares without registration. It shall be a condition precedent to the obligations Commission disclosing all material terms of the Company to take any action pursuant to this Section 1 that transactions contemplated hereby in accordance with the Investor shall furnish to the Company such information applicable Rules and representations regarding Investor, 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 and/or sale under Rule 144Regulations. The Company understands that the Investor Purchaser disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is Purchaser being deemed an underwriter shall not relieve the Company of any obligations it has hereunder.. A questionnaire related to the Registration Statement to be completed by the 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) subject to receipt of reasonably necessary information from the Investorseach Holder, prepare and file with the Securities and Exchange Commission (“SEC“ SEC ”), within thirty fifteen (3015) Calendar Days business days after the Closing Date closing price of the Company’s common stock (the “Required “ Common Stock ”) for five (5) consecutive trading days is at least $1.50 per share, as reported by the domestic stock exchange or over-the-counter market on which the shares of Common Stock are listed (the “ Filing DateDate ”), a registration statement (the “ 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) to enable the resale of the Shares by the Investors Holders from time to timetime of (x) the Investor Shares, (y) the Warrant Shares issued or issuable 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 foregoing (collectively, the “ Registrable Securities ”);
(b) use its 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 ninety (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (120) days after the Closing Filing Date (the ““ Required Effective DateDate ”). If the Registration Statement (ix) has not been filed by the applicable Required Filing Date or Effective Date, (iiy) has not been declared effective by the SEC on or before the Required Effective DateDate 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 twenty (20) 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, then the Company shall, on the business day immediately following the Required Filing Date (if not then so filed) and the Date, Required Effective Date (if not then so effective)or Required Cure Date, as the case may be, and on each 30th 30 th day anniversary thereafter, make a payment to the Investor each Holder as partial compensation for such delay (the ““ Late Registration PaymentsPayments ”) an amount equal to one half of one percent (0.51%) of the Purchase Price purchase price paid for the Warrant Shares and the Warrants purchased by each Holder and not previously sold by such Holder or otherwise registered by the Investor, Company pursuant to Section 1(a) or Section 6 until the Registration Statement is filed or declared effective by the SEC. Notwithstanding , as the foregoingcase may be; provided, however, that in no event shall the total of all Late Registration Payments payments made pursuant to this paragraph (b), if any, exceed in the aggregate ten twelve percent (1012%) of such Purchase Pricepurchase price. Late Registration Payments, if any, Payments will be prorated on a daily basis during each 30 day period and will be paid to Investor each Holder by wire transfer or check within five (5) Business Days 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 that each payment is dueof the Registration Statement;
(c) use its commercially reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the 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 ending on the earlier of (i) the date on which the Investor any Holder may sell Shares Registrable Securities pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (““ Rule 144144 ”) or (ii) such time as all Shares Registrable Securities purchased by such Investor in this Offering Holder have been sold pursuant to a registration statement or Rule 144144 (the “ Effectiveness Period ”), and to notify each Investor Holder promptly upon the each Registration Statement and each post-effective amendment thereto, being declared effective by the SEC;
(d) furnish to the Investor any Holder such number of copies (in paper or electronic version) of the Registration Statement Statements and the Prospectus Prospectuses (including supplemental prospectuses), ) 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 Registrable Securities by the Investorsuch Holder;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investoreach 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 1 and the registration of the Shares Registrable Securities pursuant to the Registration StatementStatements;
(g) advise the Investorseach 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 each Registration Statement or of the initiation of any proceeding for that purpose; and 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 a view to making available to the Investor each Holder the benefits of Rule 144 or 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) or any other rule of similar effect or (B) such date as all of the Investor’s Shares Registrable Securities shall have been soldresold; (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 ActAct of 1934, as amended (“ Exchange Act ”); and (iii) furnish to the Investor upon request each Holder, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) 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 such 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 the Investor shall furnish to the Company such information and representations regarding Investor, 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 and/or sale under Rule 144. The Company understands that the Investor each Holder disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor such Holder is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 2 contracts
Samples: Registration Rights Agreement, Registration Rights Agreement (Prides Capital Partners, LLC)
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of necessary information from the Investors, The Company shall prepare and file with the Securities and Exchange Commission (“SEC”), within thirty (30) Calendar Days after the Closing Date (the “Required Filing Date”), a Registration Statement on Form S-3 to enable the resale of the Shares by the Investors from time to time;
(b) use its best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon promptly as practicablereasonably practicable following Closing, but in no event later than ninety 45 days following Closing, a registration statement on Form S-1 (90or Form S-3, if available)(or any successor to Form S-1/S-3), covering the resale of the Registrable Securities (as defined below) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (120) days after the Closing Date (the “Required Effective DateRegistration Statement”)) and as soon as reasonably practicable thereafter but in no event later than 120 days following Closing, 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) the Shares and 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 Shares or Warrant Shares. If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the date that is 120 days after Closing (the “Required Effective Date”), then the Company shall, on the business day immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on for each 30th day anniversary thereafter, make a payment to the Investor provide each Purchaser, as compensation partial liquidated damages for such delay (together, the “Late Registration PaymentsRegistration/Listing Warrants”) an amount ), with additional Warrants equal to one half each Purchaser’s pro rata share of one percent (0.5%) 1% of the Purchase Price paid Warrants in the Offering. In addition, the Company shall, on the business day immediately following the required day for listing of the Shares purchased shares on the NASDAQ Capital Market under Section 5.2 and for each day thereafter, in the event such required listing has not occurred, provide each Purchaser, as partial liquidated damages for such delay Late Registration/Listing Warrants equal to each Purchaser’s pro rata share of 1% of the Warrants in the Offering. Late Registration/Listing Warrants will be provided to each Purchaser by the Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check Company within five (5) Business Days business days after the date that each payment is due;
(c) use its commercially reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus as may be necessary to keep the Registration Statement current and effective for a period ending on the earlier of (i) when the date on which the Investor may sell Shares pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) Late Registration Warrant accrued or (ii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement 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 such number of copies (in paper or electronic version) of the Registration Statement and the Prospectus (including supplemental prospectuses), 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;
(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 1 and the registration of the Shares pursuant to the Registration Statement;
(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 date of the Registration Statement or the listing of the initiation of any proceeding for that purpose; and it will promptly use its commercially reasonable efforts to prevent shares on 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 other rule that may permit the Investor to sell Shares without registration, the Company agrees to use its commercially reasonable efforts to: (i) make and keep public information availableNASDAQ Capital Market, as those terms are understood and defined applicable. The Company will provide all Late Registration/Listing Warrants in Rule 144, until the form set forth hereto as Exhibit B. The Late Registration/Listing Warrants cease accruing at the earlier of (Aa) such date as all the Registration Statement being declared effective and the listing of the Investor’s Shares may be resold pursuant shares on the NASDAQ Capital Market and (b) 100 days. Therefore, in no case is the Company required to Rule 144(k) or (B) such date as all issue Late Registration/Listing Warrants in excess of 200% of the Investor’s Shares shall have been sold; (ii) file with Warrants issued in the SEC Offering. “Business day” means any day except Saturday, Sunday and any day that is a federal legal holiday 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 a written statement that the Company has complied with the reporting requirements of the Securities Act and the Exchange Act, a copy (in paper or electronic version) 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 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 1 that the Investor shall furnish to the Company such information and representations regarding Investor, 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 and/or sale under Rule 144. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunderUnited States.
Appears in 2 contracts
Samples: Common Stock and Warrant Purchase Agreement (Pacific Grove Capital LP), Common Stock and Warrant Purchase Agreement (Monaker Group, Inc.)
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 receipt of necessary information from the InvestorsTransfer (including, prepare the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and file with the Securities and Exchange Commission (“SEC”), within thirty (30) Calendar Days after the Closing Date (the “Required Filing Date”), a Registration Statement on Form S-3 to enable the resale provisions of the Shares by the Investors from time to time;
(b) use its best effortsExhibit A), 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 ninety (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (120) days after the Closing Date (the “Required Effective Date”). If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required Effective Date, then the Company shall, immediately following the Required Filing Date (if not then so filed) Trust and the Required Effective Date (if not then so effective)Employees, and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is due;
(c) use its commercially reasonable best efforts to prepare and file with the SEC as soon as practicable following such amendments and supplements 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 of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and the Prospectus as may be necessary to keep the Registration Statement current and remain continuously effective for a period ending on until the earlier of (i) the date on which later of the Investor may sell Shares pursuant third anniversary of the Transfer, plus, in each case, a number of days equal to paragraph (k) the number of Rule 144 under days, if any, the Securities Act Registration Statement is suspended or any successor rule (“Rule 144”) or not effective beyond the Grace Period, (ii) such time as all Registrable Shares purchased by subject to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act for issuance to such Investor in this Offering have been sold pursuant to and is listed on a registration statement national securities exchange 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 such number of copies (in paper or electronic versionNasdaq) of another entity (the "Registration Statement and Period"). In the Prospectus (including supplemental prospectuses), 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;
(e) file documents required of the Company event that Form S-3 is unavailable 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 1 and the registration of the Shares pursuant to the Registration Statement;
(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 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 a view to making available to the Investor the benefits of Rule 144 or other rule that may permit the Investor to sell Shares without registration, the Company agrees to shall 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 be resold pursuant to Rule 144(k) or (B) such date as all of the Investor’s Shares shall have been sold; (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 a written statement that the Company has complied with the reporting requirements of the Securities Act and the Exchange Act, a copy (in paper or electronic version) of the Company’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information form as may be reasonably requested that permits the selling of any is available for such Shares without a registration. It shall be a condition precedent to the obligations For purposes of the Company to take any action pursuant to this Section 1 that 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the Investor shall furnish to the Company such information and representations regarding Investor, the Shares to be sold by Investor, and the intended method aggregate in any twelve month period of disposition of such securities as shall be required to effect the registration of the Shares and/or sale under Rule 144. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.time;
Appears in 2 contracts
Samples: Investor Agreement (Fiberstars Inc /Ca/), Investor Agreement (Adlt Class 7 Liquidating Trust)
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of necessary information from the Investors, prepare and file with the Securities and Exchange Commission (“SEC”), within thirty (30) Calendar Days after the Closing Date (the “Required Filing Date”), a Registration Statement on Form S-3 to enable the resale of the Shares by the Investors from time to time;
(b) use its best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective As promptly as soon as practicablereasonably practicable following final Closing, but in no event later than ninety 45 days following the Initial Closing Date, the Company shall prepare and file (90i) with the SEC a registration statement on Form S-1 (or any successor to Form S-1), covering the resale of the Registrable Securities (as defined below) (such registration statement, together with any registration statement for any Cut Back Shares (as defined below), the “Registration Statement”); and (ii) to the extent required for resale of the Registrable Securities in any state of the United States of America by a Purchaser at the time of or after the effectiveness of the Registration Statement, a registration statement or other applicable document (each a “Blue Sky Registration”) allowing the Purchaser to resell the Registrable Securities in such state in accordance with the blue sky laws of such state. Subject to Section 6.1(b), as soon as reasonably practicable after the Initial Closing Date, but in no event later than 90 days unless such following the Initial Closing Date (120 days in the event of a full review of the Registration statement is reviewed Statement by the SEC), the Company shall cause the Registration Statement and each Blue Sky Registration to become effective and effect 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 the Warrants, the Shares, the Warrant Shares, and 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 which case exchange for or in replacement of, any Shares or Warrant Shares. Subject to Section 6.1(b), if the number of days shall be increased to one hundred twenty (120) Registration Statement or any Blue Sky Registration has not been declared effective by the applicable governmental authority on or before the date that is 90 days after the Initial Closing Date, or 120 days after the Initial Closing Date in the event of a full review of the Registration Statement by the SEC (the “Required Effective Date”). If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required Effective Date, then the Company shall, on the business day immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor Purchasers as compensation partial liquidated damages for such delay (together, the “Late Registration Payments”) an amount equal to one half of one percent 1% (0.5capped at 6%) of the Purchase Price paid for the Shares purchased and Warrants then owned by the Investor, Purchasers that have not been so registered until the Registration Statement and each Blue Sky Registration is filed or declared effective by the SECapplicable governmental authority. Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis during each 30 day period and will be paid to Investor the Purchasers by wire transfer or check within five (5) Business Days business days after the date that each payment is due;
(c) use its commercially reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus as may be necessary to keep the Registration Statement current and effective for a period ending on the earlier of (i) the date on which end of each 30 day period following the Investor may sell Shares pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) Required Effective Date or (ii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement or Rule 144, and to notify each Investor promptly upon the effective date of the Registration Statement and each post-effective amendment thereto, being declared effective Blue Sky Registration. The Company and the Purchaser each acknowledge that the Late Registration Payments provided for in this Section 6.1(a) bear a reasonable relationship to the anticipated loss that would be suffered by the SEC;
(d) furnish Purchaser for the Company’s failure to the Investor such number of copies (in paper or electronic version) of the Registration Statement and the Prospectus (including supplemental prospectuses), 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;
(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 comply with the procedures in paragraph (a) through (e) terms of this Section 1 6.1(a) and the registration actual loss the Purchaser would suffer for the Company’s failure to comply with the terms of this Section 6.1(a) is difficult to ascertain or incapable of estimation. If the Shares Company fails to pay any liquidated damages pursuant to this section in full within seven days after the Registration Statement;
(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 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 a view to making available to the Investor the benefits of Rule 144 or other rule that may permit the Investor to sell Shares without registrationdate payable, the Company agrees will pay interest thereon at a rate of 10% per annum (or such lesser maximum amount that is permitted to use its commercially reasonable efforts to: (ibe paid by applicable law) 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 (B) such date as all of the Investor’s Shares shall have been sold; (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 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 written statement that federal legal holiday in the Company has complied with the reporting requirements of the Securities Act and the Exchange Act, a copy (in paper or electronic version) 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 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 1 that the Investor shall furnish to the Company such information and representations regarding Investor, 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 and/or sale under Rule 144. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunderUnited States.
Appears in 2 contracts
Samples: Common Stock and Warrant Purchase Agreement (Magnegas Corp), Common Stock and Warrant Purchase Agreement (Magnegas Corp)
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) subject to receipt of necessary information from as soon as practicable after the Investorsclosing date but in no event later than ninety (90) days after the closing date, prepare and file with the Securities and Exchange Commission (“SEC”), within thirty (30the "Commission") Calendar Days after the Closing Date (the “Required Filing Date”), a Registration Statement registration statement on Form S-3 to enable which meets the resale requirements of Rule 415 promulgated under the Shares Securities Act (a "Shelf Registration Statement") covering the sale by the Investors Stockholder from time to time;time 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 Shelf Registration Statement covering the sale by the Stockholder from time to time of the remaining shares of Purchaser Common Stock. The foregoing notwithstanding, Purchaser shall have no obligation to file a Shelf Registration Statement or to maintain the effectiveness of any previously filed Shelf Registration Statement if the sale of the Purchaser Common Stock pursuant to exemption from registration under Rule 144 is available to the Stockholder. Further, the Purchaser may extend its obligation to file a registration statement if the Purchaser advises the Stockholder that there is a pending, but unannounced transaction or 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 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 ninety (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (120) days after the Closing Date (the “Required Effective Date”). If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required Effective Date, then the Company shall, immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is due;
(c) use its commercially 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 ending on until the earlier of (i) the date on which the Investor may sell Shares pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (ii) such time as all Shares purchased Purchaser Common Stock registered by such Investor in this Offering have been sold pursuant to a registration statement or Rule 144, and to notify each Investor promptly upon the Shelf Registration Statement and each post-effective amendment theretohas been sold, being declared effective by or one year from the SECdate of the initial 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 Purchaser Common Stock registered under any of the Shelf Registration Statements such number of copies (of prospectuses and preliminary prospectuses in paper or electronic version) conformity with the requirements of the Registration Statement Securities Act and the Prospectus (including supplemental prospectuses), such other documents as the Investor Stockholder 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 InvestorStockholder; provided, however, that -------- ------- the obligation of Purchaser to deliver copies of prospectuses or preliminary prospectuses to the Stockholder shall be subject to the receipt by Purchaser of reasonable assurances from the Stockholder that the 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 or preliminary prospectuses;
(eg) file documents required of the Company Purchaser for normal blue sky clearance in states reasonably specified in writing by the Investor; Stockholder, 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 (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph paragraphs (a) through (eg) of this Section 1 11.1 and the registration of the Shares Purchaser Common Stock pursuant to the Registration Statement;
(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 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 a view to making available other advisers to the Investor the benefits of Rule 144 or other rule that may permit the Investor to sell Shares without registration, the Company 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 be resold pursuant to Rule 144(k) or (B) such date as all of the Investor’s Shares shall have been sold; (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 a written statement that the Company has complied with the reporting requirements of the Securities Act and the Exchange Act, a copy (in paper or electronic version) 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 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 1 that the Investor shall furnish to the Company such information and representations regarding Investor, 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 and/or sale under Rule 144. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunderStockholder.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Sylvan Learning Systems Inc), Agreement and Plan of Reorganization (Sylvan Learning Systems Inc)
Registration Procedures and Expenses. (a) The Company shall:
(ai) subject to receipt of necessary information from each of the Investors, prepare and file with the Securities and Exchange Commission (“SEC”), within thirty (30) Calendar Days as soon as practicable after the Second Closing Date and in no event later than five (5) Business Days following the Second Closing Date, or, if the Second Closing Date shall not occur, as soon as practicable after the first date on which an Investor exchanges all or any portion of such Investor’s Exchangeable Note pursuant to Section 5.5(b) of the Agreement and in no event later than five (5) Business Days following such date, a registration statement on Form S-3 (the “Required Filing DateRegistration Statement”), a Registration Statement on Form S-3 ) to enable the resale of the Second Closing Shares by each of the Investors from time to timetime through the automated quotation system of the Nasdaq Stock Market or in privately-negotiated transactions;
(bii) (A) use its reasonable best efforts, subject to receipt of necessary information from each of the Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than ninety sixty (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (12060) days after the Closing Date (the “Required Effective Date”). If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required Effective Date, then the Company shall, immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoingCompany, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent and (10%B) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is duereceipt of a no review letter from the SEC, take all appropriate measures necessary to cause the Registration Statement to become effective;
(ciii) 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 which forms a part thereof (the “Prospectus”) as may be necessary to keep the Registration Statement current and effective for a period ending on not exceeding, with respect to the Investors’ Second Closing Shares, the earlier of (i) the date on which which, in the Investor opinion of counsel to the Company, each of the Investors may sell all Second Closing Shares then held by it in any 90-day period pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“without restriction by the volume limitations of Rule 144”144(e)) or (ii) such time as all Second Closing Shares purchased by such Investor in this Offering the Investors have been sold pursuant to a registration statement under the Securities Act or pursuant to Rule 144, and ;
(iv) furnish to notify each Investor promptly upon of the Investors with respect to the Second Closing Shares registered under the Registration Statement and each post-effective amendment thereto, being declared effective by the SEC;
(d) furnish to the Investor such number of copies (in paper or electronic version) of the Registration Statement and the Prospectus Statement, Prospectuses (including supplemental prospectuses), ) and 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 such Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Second Closing Shares by such Investor, provided, however, that unless waived by the InvestorCompany in writing, the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to any Investor shall be subject to the receipt by the Company of reasonable assurances from such 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 reasonably specified in writing by any Investor prior to the Investor; 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;
(fvi) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph (ai) through (ev) of this Section 1 and the registration of the Second Closing Shares pursuant to the Registration Statement;
, including without limitation (a) registration and filing fees with the SEC, (b) fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of Company counsel in connection with blue sky qualifications of the Second Closing Shares), (c) printing expenses, (d) fees and expenses incurred in connection with the listing of the Second Closing Shares, (e) fees and expenses of counsel and independent certified public accountants for the Company (including the expenses of any comfort letters), (f) the fees and expenses of any additional experts retained by the Company in connection with such registration, (g) fees and expenses in connection with any review of underwriting arrangements by the NASD Inc., including fees and expenses of any “qualified independent underwriter,” (h) internal Company expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), and (i) all reasonable fees and disbursements of one counsel for the Investors in connection with such registration; and
(vii) advise each of 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 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.
(hb) with With a view to making available to the Investor Investors 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 Investors to sell Second Closing Shares 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 as, in the opinion of counsel to the Company, all of the Investor’s Investors’ Second Closing 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 Investors’ Second Closing Shares shall have been soldresold; (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 each Investor upon request request, as long as such Investor owns any Second Closing Shares, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) of the Company’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 such Investor of any rule or regulation of the SEC that permits the selling of any such Second Closing Shares without registration. It .
(c) With respect to any Investor, it shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 1 that the such Investor shall furnish to the Company such information and representations regarding Investoritself, the Second Closing Shares to be sold by such Investor, and the intended method of disposition of such securities as shall be required to effect the registration of the Second Closing Shares.
(d) Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Second Closing Shares. In no event at any time before the Registration Statement becomes effective with respect to the Second Closing Shares and/or sale under Rule 144. shall the Company publicly announce or file any other registration statement, other than a registration statement on Form S-8 relating solely to employee benefit plans, without the prior written consent of each of the Investors.
(e) The Company understands that each of the Investor Investors disclaims being an underwriter, but acknowledges that a determination any Investor being deemed an underwriter by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 1 contract
Registration Procedures and Expenses. (a) The Company shallwill:
(ai) subject to receipt of necessary information from the Investors, prepare and file with the Securities and Exchange Commission (“SEC”), within thirty (30) Calendar Days after the Closing Date (the “Required Filing Date”), a Registration Statement on Form S-3 to enable the resale of the Shares by the Investors from time to time;
(b) use its 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 ninety sixty (9060) days unless such following the Closing Date (the “Filing Date”), use its reasonable best efforts to prepare and file with the Commission a registration statement on Form S-3 or another appropriate form only if Form S-3 is not available (the “Registration Statement”) covering the resale of the Shares and the Warrant Shares (each of the Shares and Warrant Shares, 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 exchange for or with respect to any of the foregoing, in each case held at the relevant time by an Investor, the “Registrable Securities”) by each Investor (the parties acknowledge that the Company may choose to include, at its option and solely for its convenience, the Registrable Securities on a registration statement is reviewed with other similar securities sold by the SECCompany;
(ii) use its reasonable best efforts to cause the Registration Statement, as amended, to become effective under the 1933 Act as soon as practicable but in which case the number of days shall be increased to one hundred twenty any event no later than sixty (12060) days after the Closing Date (the “Required Effective DateEffectiveness Deadline”). If ; provided, that if the Commission reviews and has comments to the filed Registration Statement (i) has not been filed by that would require the Required Filing Date or (ii) has not been declared filing of a pre-effective by amendment thereto with the SEC on or before the Required Effective DateCommission, then the Company shall, immediately following the Required Filing Date Effectiveness Deadline shall be one-hundred and twenty (if not then so filed120) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days days after the date Closing Date; and provided, further, that each payment is due;
(c) the Company shall use its commercially reasonable best efforts to respond within 10 days to any comments or requests for information from the Commission;
(iii) prepare and file with the SEC Commission 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 ending on until the earlier of (i) the date on which the Investor all Registrable Securities covered by such Registration Statement may sell Shares be sold pursuant to paragraph (kRule 144(k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) 1933 Act, or (ii) such time as all Shares Registrable Securities purchased by such Investor in this Offering the Investors have been sold pursuant to a registration statement or Rule 144, and to notify each Investor promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective (B) as may be reasonably requested by the SECan Investor in order to incorporate information concerning such Investor or such Investor’s intended method of distribution;
(div) so long as the Registration Statement is effective covering the resale of Registrable Securities owned by the Investors, furnish to each Investor with respect to the Investor Registrable Securities registered under the Registration Statement (and to each underwriter, if any, of such Registrable Securities) such reasonable number of copies (in paper or electronic version) of the Registration Statement prospectuses and the Prospectus (including supplemental prospectuses), such other documents as the such Investor may reasonably request, request in order to facilitate the public sale or other disposition of all or any of the Shares Registrable Securities by the such Investor;
(ev) use commercially reasonable efforts to file documents required of the Company for normal blue sky Blue Sky clearance in states reasonably specified in writing by the InvestorInvestors; provided, however, that the Company shall not be required to qualify to do business or consent to service of process generally in any jurisdiction in which it the Company is not now so qualified or has not so consented;
(fvi) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph (a) through (e) of this Section 1 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 Investors or underwriting discounts, brokerage fees and commissions incurred by the Investors, if any in connection with an underwritten offering of the Registrable Securities;
(gvii) 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 it will promptly use its all commercially reasonable efforts to prevent the issuance of any stop order or other order suspending the effectiveness of such Registration Statement and, if such an order is issued, to obtain its the withdrawal thereof at the earliest possible moment time and to notify each Investor of the issuance of such order and the resolution thereof;
(viii) furnish to each Investor, on the date that such Registration Statement becomes effective, a letter, dated such date, addressed to such Investor, confirming the effectiveness of such Registration Statement and the absence of any stop order;
(ix) immediately notify the Investors, at any time when a Prospectus relating to Registrable Securities is required to be delivered under the 1933 Act, upon discovery that, or upon the happening of any 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 omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and at the request of any such Investor, promptly prepare and furnish to such Investor an electronic copy of a supplement to or an amendment of such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;
(x) provide to each Investor and its representatives, if requested, the opportunity to conduct a reasonable inquiry of the Company’s financial and other records during normal business hours and make available its officers, directors and employees for questions regarding information which such stop Investor may reasonably request in order should to fulfill any due diligence obligation on its part;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission under the 1933 Act and the 1934 Act, take such other actions as may be issuedreasonably necessary to facilitate the registration of the Registrable Securities hereunder; and make available to its security holders, as soon as reasonably practicable, an earnings statement covering a period of at least twelve (12) months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the 1933 Act, including Rule 158 promulgated thereunder; and
(hxii) permit counsel for each Investor to review, and provide comments on, the Registration Statement and all amendments and supplements thereto, not less than 3 Business Days prior to the filing thereof with the Commission, and the Company shall incorporate all such comments which are reasonable; provided, that, notwithstanding any other provision in this Agreement, the Company shall not be required to provide, and shall not provide, any Investor with material, non-public information unless such Investor agrees to receive such information prior to its disclosure and enters into a written confidentiality agreement with the Company.
(b) The Company shall be permitted to suspend for one or more periods (provided that the aggregate length of such suspension shall not exceed twenty business days in any 365 day period) the actions required under Sections 7.1(a)(i) through (iii) to the extent that the Board of Directors of the Company concludes in good faith that the Company is, considering the advice of counsel, in possession of material non-public information, the disclosure of which would have a material adverse effect on the business, operations, properties or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole.
(c) With a view to making available to the Investor Investors the benefits of Rule 144 promulgated under the 1933 Act (“Rule 144”) (or its successor rule) and any other rule or regulation of the Commission that may at any time permit the Investor Investors 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 Investors’ 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 Investors’ Registrable Securities shall have been soldresold; (ii) file with the SEC Commission in a timely manner all reports and other documents required of the Company under the Securities Act and under the Exchange 1934 Act; and (iii) furnish to the each Investor upon request request, as long as such Investor owns any Registrable Securities, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange 1934 Act, (B) a copy (in paper or electronic version) 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 such Investor of any rule or regulation of the Commission that permits the selling of any such Shares Registrable Securities without registration. It shall be .
(d) If a condition precedent Registration Statement covering the Registrable Securities is not filed with the Commission on or prior to the obligations Filing Date, is not declared effective by the Effectiveness Deadline or is subject to a suspension pursuant to Section 7.1(b) that exceeds the number of days permitted thereunder, the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 1.5% of the aggregate amount invested by such Investor (the “Investment Amount”) for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been filed or effective for which no Registration Statement is filed or effective with respect to the Registrable Securities; provided, however, that in no event shall the aggregate amount of liquidated damages payable by the Company to take any action pursuant to this Agreement exceed the lesser of (1) 15% of the Investment Amount or (2) the liquidity value of the Registrable Securities, representing the value difference between registered and unregistered shares, as contemplated in EITF 00-19, EITF 05-4 and other applicable rules, regulations and interpretations of the Financial Accounting Standards Board, the Emerging Issues Task Force and the Securities and Exchange Commission. Except as set forth in Section 1 10 of the Warrants, with respect to the extension of the term of the Warrants, such payments shall be in full compensation to each Investor, and shall constitute such Investor’s exclusive remedy for such events; provided, however, that the Investors shall retain the right to pursue all available equitable remedies. Such payments shall be made to each Investor in cash. Notwithstanding anything in this Agreement to the contrary, the Company shall not be liable for money damages for any delay in effectiveness or other suspension that is caused by events beyond its control.
(e) As a condition to the inclusion of its Registrable Securities under the Registration Statement, each Investor shall furnish to the Company such information and representations regarding Investor, the Shares to be sold by Investor, such Investor and the intended method of disposition of distribution proposed by such securities Investor as the Company may reasonably request in writing, including completing a Registration Statement Questionnaire in the form provided by the Company, or as shall be required in connection with any registration referred to effect the registration of the Shares and/or sale under Rule 144in this Section 7.1. The Company understands shall not be required to include the Registrable Securities of any Investor in a Registration Statement and shall not be required to pay any liquidated or other damages under Section 7.1(d) to any Investor who fails to furnish to the Company a fully completed Registration Statement Questionnaire, if requested by the Company, at least five trading days prior to the Filing Date (the “Questionnaire Delivery Date”); provided that the Company provides such Investor disclaims being an underwriterat least 5 trading days prior written notice of the Questionnaire Delivery Date, but acknowledges that a determination by which notice references the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereundersubject Registration Statement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Rainmaker Systems Inc)
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of necessary information from the Investors, prepare and file with the Securities and Exchange Commission SEC, as soon as practicable, but in no event later than ten (“SEC”), within thirty (3010) Calendar Days business days after the Closing Date (the “Required Filing 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 timetime through the automated quotation system of the Nasdaq Stock Market or in privately-negotiated transactions;
(b) use its best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable, but shall in any event exercise its best efforts to cause the Registration Statement to become effective no event later than ninety sixty (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (12060) days after the Closing Date (Registration Statement is filed by the “Required Effective Date”)Company. If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required Effective date that is 90 days after the Closing Date, then the Company shall, immediately following on the Required Filing 91st day after the Closing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment issue to the Investor as compensation ..01 additional shares of Common Stock (which shall be deemed to be Shares), up to a maximum of .09 additional shares of Common Stock, for such delay (every Share purchased in the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, Offering until the Registration Statement is filed or declared effective by the SEC. Notwithstanding SEC (rounded up to the foregoing, in no event shall nearest Share after aggregating all Shares held by the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is dueInvestor);
(c) use its commercially 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 ending on not exceeding, with respect to 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 pursuant to paragraph (kthen held by the Investor without restriction by the volume limitations of Rule 144(e) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (iiiii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement or Rule 144, and to notify each Investor promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective by the SECsold;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies (in paper or electronic version) of the Registration Statement and the Prospectus Statement, Prospectuses (including supplemental prospectuses), ) and preliminary versions of the Prospectus filed with the Securities Exchange Commission ("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 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 Investor; Investor 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 professional fees incurred by the Investors and underwriting discounts and commissions, if any) in connection with the procedures in paragraph (a) through (e) of this Section 1 6.1 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 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 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 '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 's Shares shall have been soldresold; (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 request, as long as the Investor owns any Shares, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) 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 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 1 6.1 that the Investor shall furnish to the Company such information and representations regarding Investoritself, 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 and/or sale under Rule 144Shares. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination the Investor being deemed an underwriter by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of necessary information from the InvestorsInvestors after prompt request from the Company to the Investors to provide such information, use its reasonable best efforts to prepare and file with the Securities and Exchange Commission (“SEC”), within thirty (30) Calendar Days 10 days after the Closing Date Date, a registration statement (the “Required Filing Date”), a "Registration Statement on Form S-3 Statement") to enable the resale of the Shares by the Investors from time to timetime 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 InvestorsInvestors after prompt request from the Company to the Investors to provide such information, to cause the Registration Statement to become effective as soon as practicable, but in no event later than ninety (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (120) within 30 days after the Closing Date (Registration Statement is filed by the “Required Effective Date”)Company, such reasonable best efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 30 day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement. If either (i) the Registration Statement (i) has shall not been filed by the Required Filing Date or (ii) has not have been declared effective by the SEC on within 120 days following the Closing Date, or before (ii) the Required Effective Registration Statement, following its effectiveness, shall not have been continuously effective for at least 45 continuous days during the period ending 165 days after the Closing Date, then the Company shall, immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment shall issue to the Investor Investor, as compensation for such delay (the “Late Registration Payments”) an amount liquidated damages and not as a penalty, that number of shares of Common Stock as shall equal to one half of one five percent (0.55%) of the Purchase Price paid for the total number of Shares purchased by the Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid Investor pursuant to Investor by wire transfer or check within five (5) Business Days after the date that each payment is due;this Agreement.
(c) use its commercially 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 ending on not exceeding, with respect to 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 pursuant to paragraph (kthen held by the Investor without restriction by the volume limitations of Rule 144(e) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) Act, or (iiiii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement 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;statement.
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies (in paper or electronic version) of the Registration Statement and the Prospectus (including supplemental prospectuses)Statement, 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;
(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 1 and the registration of the Shares pursuant to the Registration Statement;
(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 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; Prospectuses and
(h) with a view to making available to the Investor the benefits of Rule 144 or other rule that may permit the Investor to sell Shares without registration, the Company 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 be resold pursuant to Rule 144(k) or (B) such date as all of the Investor’s Shares shall have been sold; (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 a written statement that the Company has complied with the reporting requirements of the Securities Act and the Exchange Act, a copy (in paper or electronic version) 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 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 1 that the Investor shall furnish to the Company such information and representations regarding Investor, 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 and/or sale under Rule 144. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of necessary information from the InvestorsInvestor, use commercially reasonable efforts to prepare and file with the Securities and Exchange Commission (“SEC”), within thirty ten (3010) Calendar Days business days after the Closing Date Date, a registration statement on Form S-3 (the “Required Filing DateRegistration Statement”), a Registration Statement on Form S-3 ) to enable the resale of the Shares, the Warrant Shares and the shares of Common Stock that may be issued upon conversion of that certain Secured Convertible Note, by and among the Investors Company, Last Chance, Inc., a Nevada corporation, and the Investor, from time to timetime through the automated quotation system of the Nasdaq SmallCap Market or in privately-negotiated transactions;
(b) use its 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 ninety sixty (9060) days unless such after the Registration statement Statement is reviewed filed by the SEC, in which case Company. If the number of days shall be increased to one hundred twenty (120) Registration Statement has not been declared effective by the SEC on or before the date that is 15 business days after the Closing Date (the “Required Effective Date”). If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required Effective Date, then the Company shall, immediately on the following the Required Filing Date (if not then so filed) day and the Required Effective Date (if not then so effective), and on each 30th day anniversary for a period of 59 days thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of $500 per day. If the Purchase Price paid for the Shares purchased Registration Statement has not been declared effective by the InvestorSEC on or before the date that is 75 days after the Closing Date, the Company shall, on the 76th day and thereafter, until the Registration Statement is filed or declared effective by the SEC, make a payment to the Investor as compensation for such delay (the “Additional Late Registration Payments”) equal to $1,000 per day. Notwithstanding the foregoing, in no event shall the total of all The Late Registration Payments exceed in and the aggregate ten percent (10%) of such Purchase Price. Additional Late Registration Payments, if any, will be prorated on a daily basis and Payments will be paid to the Investor by wire transfer or check within five (5) Business Days business days after each calendar month during which any such payments become due and payable to the date that each payment is dueInvestor;
(c) use its commercially 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 ending on not exceeding, with respect to 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 pursuant to paragraph (kthen held by the Investor without restriction by the volume limitations of Rule 144(e) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (iiiii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement or Rule 144statement, 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 (in paper or electronic version) of the Registration Statement and the Prospectus Statement, Prospectuses (including supplemental prospectuses), ) and preliminary versions of the Prospectus filed with the Securities Exchange Commission (“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 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 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 1 6.1 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 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 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 and the Warrant 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 and/or the Warrant Shares shall have been soldresold; (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 written request, as long as the Investor owns any Shares, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) 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 1 6.1 that the Investor shall furnish to the Company such information and representations regarding Investoritself, the Shares and/or the Warrant 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 and/or sale under Rule 144the Warrant Shares. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination the Investor being deemed an underwriter by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 1 contract
Registration Procedures and Expenses. The Company Arcadia shall:
(aA) subject to receipt of necessary the information described in the final paragraph of this Section 1 from the InvestorsSellers, prepare and file with the Securities and Exchange Commission (“"SEC”"), within thirty before the later of (30i) forty-five (45) Calendar Days after the Closing Date Date; or (ii) ten (10) Calendar Days after receipt by Arcadia of the Audited Financial Statements and related independent accountants report and consent required by Section 4.11 of the Purchase Agreement (the “Required Filing Date”"REQUIRED FILING DATE"), a Registration Statement on Form S-3 or such other form as is available to Arcadia to enable the resale of the Shares by the Investors Sellers from time to time;
(bB) use its best efforts, subject to receipt of necessary the information described in the final paragraph of this Section 1 from the InvestorsSellers, to cause the Registration Statement to become effective as soon as practicable, but in no event later than within ninety (90) days unless such Registration statement is reviewed Calendar Days after filing, or, in the event of a full review by the SEC, in which case the number of days shall be increased to within one hundred twenty (120) days Calendar Days after the Closing Date filing (the “"REQUIRED EFFECTIVE DATE"). Notwithstanding the foregoing, in the event that 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 Required Effective Date”)Date shall be no later than five (5) Business Days following the Company's being so notified. If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required Effective DateDate because of Arcadia's breach of this provision, then the Company shallSellers shall be entitled to receive from Arcadia, immediately following pro rata, as their sole legal remedy for such breach, an aggregate number of shares of Common Stock equal to 1% of the Required Filing Date (if not then so filed) and number of Closing Shares for each month after the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, until that the Registration Statement is filed not declared effective, up to a maximum aggregate amount of 5% of the Closing Shares (the "Penalty Shares"). In the event of changes in the outstanding Common Stock of the Company by reason of a stock dividend, stock split, reverse stock split, reorganization, recapitalization, merger, consolidation, liquidation, separation, combination or declared effective by exchange of stock, change in the SEC. Notwithstanding the foregoing, in no event shall the total Company's business structure or sale or transfer of all Late Registration Payments exceed in or any part of the aggregate ten percent Company's business or assets (10%) referred to as a "Capital Adjustment"), the number of Penalty Shares shall be adjusted consistent with such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is dueCapital Adjustment;
(cC) use its commercially reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus as may be necessary to keep the Registration Statement current and effective for a period ending on the earlier of (i) the date on which the Investor Seller may sell all Shares received by such Seller in this Transaction pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule "RULE 144”") or (ii) such time as all Shares purchased received by such Investor Seller in this Offering Transaction have been sold pursuant to a registration statement or Rule 144, and to notify each Investor Seller promptly upon the Registration Statement and each post-effective amendment thereto, thereto being declared effective by the SEC;
(dD) furnish to the Investor such number of copies (in paper or electronic version) of Seller, at the Seller's request, the Registration Statement and the Prospectus in electronic format (including supplemental prospectuses), 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;
Seller. Not less than five Trading Days prior to the filing of each Registration Statement or any related Prospectus or any amendment or supplement thereto (eincluding any document that would be incorporated or deemed to be incorporated therein by reference), the Company shall, (i) file furnish to each Seller copies of all such documents required 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 Sellers, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable investigation within the meaning of the Company for normal blue sky clearance in states specified in writing by the Investor; provided, however, that the Securities Act. 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 1 and the registration of the Shares pursuant to the Registration Statement;
(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 file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Sellers holding a majority of the initiation of any proceeding for that purpose; and 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 a view to making available to the Investor the benefits of Rule 144 or other rule that may permit the Investor to sell Shares without registrationshall reasonably object in good faith, provided that, the Company agrees to use its commercially reasonable efforts to: (i) make and keep public information availableis notified of such objection, as those terms are understood and defined including the substance of such objection, in Rule 144, until writing no later than 5 Trading Days after the earlier of (A) such date as all of the Investor’s Shares may be resold pursuant to Rule 144(k) or (B) such date as all of the Investor’s Shares shall Sellers have been sold; (ii) file with the SEC in a timely manner all reports and other documents required so furnished copies of the Company under the Securities Act and under the Exchange Act; and (iii) furnish to the Investor upon request a written statement that the Company has complied with the reporting requirements of the Securities Act and the Exchange Act, a copy (in paper or electronic version) 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 that permits the selling of any such Shares without registrationdocuments. It shall be a condition precedent to the obligations of the Company Arcadia to take any action pursuant to this Section 1 that the Investor Seller shall furnish to the Company Arcadia such information and representations requested by Arcadia regarding InvestorSeller, the Shares to be sold by InvestorSeller, and the intended method of disposition of such securities as shall be required to effect the registration of the Shares Shares, amendments to the Registration Statement, and/or sale under Rule 144. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 1 contract
Samples: Registration Rights Agreement (Arcadia Resources, Inc)
Registration Procedures and Expenses. (a) The Company shall:
(ai) subject to receipt of necessary information from the Investors, prepare and file with the Securities and Exchange Commission (“SEC”), within thirty (30) Calendar Days as soon as practicable, but in no event later than 15 business days after the Closing Date (the “Required Filing Date”), a Registration Statement 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 timetime through the NYSE or in accordance with other methods of distribution described in the Registration Statement, elected by the Investor;
(bii) use its best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon as practicable; provided, however, if the SEC reviews the Registration Statement and provides written or verbal comments thereto, the Company shall use its best efforts to cause the Registration Statement to become effective as soon as practicable, but in no event later than 90 days after the Registration Statement is filed by the Company; provided, further that, if the SEC notifies the Company that the Registration Statement will not receive a review or will not require any amendments to the information contained therein, the Company shall use its best efforts to cause the Registration Statement to become effective by the later of 30 days from the date the Registration was filed or 5 business days from the date of such notice from the SEC. If the Registration Statement is not declared effective within ninety (90) days unless such Registration statement is reviewed by of Closing Date, then each Investor may elect to receive, at the SECInvestor's discretion, in which case from the Company either: (i) an aggregate number of shares of Common Stock equal to 1% of the number of days shall be increased to one hundred twenty Shares purchased by such Investor hereunder (120pro rata in accordance with their initial purchase under this Agreement), for each month (and pro rated for any partial month) after such ninety (90) days after the Closing Date (the “Required Effective Date”). If that the Registration Statement (i) has is not been filed declared effective, up to a maximum aggregate amount of 5% of the Shares purchased by the Required Filing Date such Investor hereunder or (ii) has a fee, as liquidated damages and not been declared effective by the SEC on or before the Required Effective Dateas a penalty, then the Company shall, immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) 0.0833% of the Purchase Price purchase price paid by such Investor for the Shares purchased by set forth on the Investor, until Signature Page for each day after such ninety (90) days the Registration Statement is filed or not declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is dueeffective;
(ciii) use its commercially 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 continuously effective, subject to Section 7.2, and shall otherwise comply with the provisions of the Securities Act with respect to the registration of the Shares covered by the Registration Statement, for a period ending on not exceeding, with respect to 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 pursuant to paragraph (kRule 144(k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (iiiii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement or Rule 144, and to notify each Investor promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective by the SECstatement;
(div) furnish to the Placement Agent and to the Investor with respect to the Shares registered under the Registration Statement such number of copies (in paper or electronic version) of the Registration Statement Statement, Prospectuses and Preliminary Prospectuses, and each amendment and supplement thereto, in conformity with the Prospectus (including supplemental prospectuses), 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;
(ev) file documents required use best efforts to register and qualify the Shares covered by the Registration Statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably appropriate in the opinion of the Company for normal blue sky clearance in states specified in writing and the managing underwriters, if any, or if reasonably requested by the InvestorInvestors; provided, however, provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions; and provided further that (notwithstanding anything in this Agreement to the contrary with respect to the bearing of expenses) if any jurisdiction in which it is not now so any of such Shares shall be qualified or has not so consentedshall require that expenses incurred in connection with the qualification therein of any such Shares be borne by the selling Investors, then the selling Investors shall, to the extent required by such jurisdiction, pay their pro rata share of such qualification expenses;
(fvi) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph (a) through (e) of this Section 1 7.1(a) and the registration of the Shares pursuant to the Registration Statement, other than fees and expenses, if any, of counsel or other advisors to the Investors or underwriting discounts, brokerage frees and commissions incurred by the Investors, if any;
(gvii) advise the InvestorsInvestors in writing, 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 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;
(viii) cause all such Shares registered pursuant to this Agreement to be listed on each securities exchange on which similar securities issued by the Company are then listed, if the listing of such Shares is then permitted under the rules of such exchange, or if no similar securities are then so listed, to cause all such Shares to be listed on a national securities exchange, and promptly furnish to the NYSE and any other such exchange the Prospectus, including any supplements and amendments thereto, if required under Rule 153 of the Securities Act;
(ix) provide a transfer agent and registrar for all Shares registered pursuant to this Agreement and a CUSIP number for all such Shares, in each case not later than the effective date of such registration and use best efforts to cause the transfer agent to remove restrictive legends on the securities covered by such registration;
(x) notify the Investor of the effectiveness of the Registration Statement or any post-effective amendment on the date such Registration Statement or post-effective amendment becomes effective;
(xi) cooperate with the Investor to facilitate the timely preparation and delivery of certificates representing the Shares to be sold and not bearing, unless required by law, any restrictive legends if sold under the Registration Statement; and
(hxii) permit counsel to each of the Investors an opportunity to review the Registration Statement and all amendments and supplements thereto prior to their filing with the SEC. The sections of any such Registration Statement with respect to the Investor, the Investor's beneficial ownership of securities of the Company or the Investor's intended method of disposition of the Shares shall contain the information provided to the Company by the Investor.
(b) 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 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 '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 's Shares shall have been soldresold; (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 request, as long as the Investor owns any Shares, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) 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 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 1 7.1 that the such Investor shall furnish to the Company such information and representations regarding Investoritself, 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 and/or sale under Rule 144. Shares.
(d) The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination the Investor being deemed an underwriter by the SEC that the Investor is deemed an underwriter 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 regarding the Registration Statement shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Samples: Stock Purchase Agreement (Ciber Inc)
Registration Procedures and Expenses. The Except for such times as the Company 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:
(a) subject to receipt of necessary information from the Investors, prepare and file with the Securities and Exchange Commission (“SEC”), within thirty (30) Calendar Days after the Closing Date (the “Required Filing Date”), a Registration Statement on Form S-3 to enable the resale of the Shares by the Investors from time to time;
(b) use its 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 ninety thirty (9030) days unless such following the Closing Date, use best efforts to prepare and file with the SEC the Registration statement Statement on Form S-3 relating to the resale of the Shares by the Purchaser from time to time 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 best efforts to cause the Registration Statement to become effective under the Securities Act of 1933, as amended, no later than ten (10) days after the date of filing with the SEC, if the Registration Statement is not reviewed by the SEC, or no later than 120 days after the Closing Date, if the Registration Statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (120) days after the Closing Date (the “Required Effective Date”). If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required Effective Date, then the Company shall, immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is due;
(c) 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 used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period ending on until the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor Purchaser may sell all Shares pursuant to paragraph (k) then held by the Purchaser within a three-month period without restriction by reason of Rule 144 under the Securities Act ("Rule 144") or any successor other rule (“Rule 144”) of similar effect, or (iiiii) such time as all Shares purchased by such Investor in this Offering the Purchaser have been sold pursuant to a registration statement or Rule 144, and to notify each Investor promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective by the SECstatement;
(d) so long as the Registration Statement is effective covering the resale of Shares owned by the Purchaser, use best efforts to 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 (in paper or electronic version) of the Registration Statement prospectuses and the Prospectus (including supplemental prospectuses), 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 InvestorPurchaser; provided, however, that the obligation of the Company to deliver copies of prospectuses to the Purchaser shall be subject to the receipt by the Company of reasonable assurances from the Purchaser that the Purchaser will comply with the applicable provisions of the Securities Act and of such other securities laws as may be applicable in connection with any use of such prospectuses;
(e) use commercially reasonable efforts to restrict any suspension referred to in Section 5(b) to no more than ten (10) business days and to restrict suspensions within any 365 day period to no more than twenty-five (25) business days in such period;
(f) use best efforts to file documents required of the Company for normal blue sky clearance in 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;
(fg) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph paragraphs (a) through (e) of this Section 1 7.1 and the registration of the Shares pursuant to the Registration Statement;
(g) advise , other than fees and expenses, if any, of counsel or other advisers to the InvestorsPurchaser or the Other Purchasers or underwriting discounts, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order 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 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 Other Purchasers, if such stop order should be issuedany; and
(h) 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 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 Purchaser'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 Investor’s Purchaser's Shares shall have been soldresold; (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 request, as long as Purchaser owns any Shares, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) of the Company’s most recent Annual Report annual report on Form 10-K or Quarterly Report quarterly report of the Company on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail Purchaser 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 1 that the Investor shall furnish to the Company such information and representations regarding Investor, 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 and/or sale under Rule 144. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 1 contract
Samples: Stock Purchase Agreement (Ligand Pharmaceuticals Inc)
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of necessary information from the Investors, prepare and file with the Securities and Exchange Commission (“"SEC”"), within thirty (30) Calendar Days days after the Closing Date (the “Required Filing Date”"REQUIRED FILING DATE"), a Registration Statement on Form S-3 to enable the resale of the Shares by the Investors from time to time;
(b) use its 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 ninety (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (120) days after the Closing Required Filing Date (the “Required Effective Date”"REQUIRED EFFECTIVE DATE"). If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required Effective Date, then the Company shall, immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”"LATE REGISTRATION PAYMENTS") an amount equal to one half of one percent (0.51%) of the Purchase Price paid for the Shares purchased by the Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is due;
(c) use its commercially reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus as may be necessary to keep the Registration Statement current and effective for a period ending on the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell Shares pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule "RULE 144”") or (iiiii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement 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 such number of copies (in paper or electronic version) of the Registration Statement and the Prospectus (including supplemental prospectuses), 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;
(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 1 and the registration of the Shares pursuant to the Registration Statement;
(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 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 a view to making available to the Investor the benefits of Rule 144 or other rule that may permit the Investor to sell Shares without registration, the Company 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 's Shares may be resold pursuant to Rule 144(k) or (B) such date as all of the Investor’s 's Shares shall have been sold; (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 a written statement that the Company has complied with the reporting requirements of the Securities Act and the Exchange Act, a copy (in paper or electronic version) 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 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 1 that the Investor shall furnish to the Company such information and representations regarding Investor, 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 and/or sale under Rule 144. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 1 contract
Samples: Registration Rights Agreement (Ilinc Communications Inc)
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of reasonably necessary information from the Investorseach Holder, prepare and file with the Securities and Exchange Commission (“SEC”), within thirty fifteen (3015) Calendar Days business days after the Closing Date closing price of the Company’s common stock (the “Required Common Stock”) for five (5) consecutive trading days is at least $1.50 per share, as reported by the domestic stock exchange or over-the-counter market on which the shares of Common Stock are listed (the “Filing Date”), a registration statement (the “Registration Statement 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) to enable the resale of the Shares by the Investors Holders from time to timetime of (x) the Investor Shares, (y) the Warrant Shares issued or issuable 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 foregoing (collectively, the “Registrable Securities”);
(b) use its 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 ninety (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (120) days after the Closing Filing Date (the “Required Effective Date”). If the Registration Statement (ix) has not been filed by the applicable Required Filing Date or Effective Date, (iiy) 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 twenty (20) 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, then the Company shall, on the business day immediately following the Required Filing Date (if not then so filed) and the Date, Required Effective Date (if not then so effective)or Required Cure Date, as the case may be, and on each 30th day anniversary thereafter, make a payment to the Investor each Holder as partial compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.51%) of the Purchase Price purchase price paid for the Warrant Shares and the Warrants purchased by each Holder and not previously sold by such Holder or otherwise registered by the Investor, Company pursuant to Section 1(a) or Section 6 until the Registration Statement is filed or declared effective by the SEC. Notwithstanding , as the foregoingcase may be; provided, however, that in no event shall the total of all Late Registration Payments payments made pursuant to this paragraph (b), if any, exceed in the aggregate ten twelve percent (1012%) of such Purchase Pricepurchase price. Late Registration Payments, if any, Payments will be prorated on a daily basis during each 30 day period and will be paid to Investor each Holder by wire transfer or check within five (5) Business Days 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 that each payment is dueof the Registration Statement;
(c) 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 (the “Prospectus”) included as part of the Registration Statement as may be necessary to keep the Registration Statement current and effective for a period ending on the earlier of (i) the date on which the Investor any Holder may sell Shares Registrable Securities pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (ii) such time as all Shares Registrable Securities purchased by such Investor in this Offering Holder have been sold pursuant to a registration statement or Rule 144144 (the “Effectiveness Period”), and to notify each Investor Holder promptly upon the each Registration Statement and each post-effective amendment thereto, being declared effective by the SEC;
(d) furnish to the Investor any Holder such number of copies (in paper or electronic version) of the Registration Statement Statements and the Prospectus Prospectuses (including supplemental prospectuses), ) 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 Registrable Securities by the Investorsuch Holder;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investoreach 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 1 and the registration of the Shares Registrable Securities pursuant to the Registration StatementStatements;
(g) advise the Investorseach 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 each Registration Statement or of the initiation of any proceeding for that purpose; and 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 a view to making available to the Investor each Holder the benefits of Rule 144 or 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) or any other rule of similar effect or (B) such date as all of the Investor’s Shares Registrable Securities shall have been soldresold; (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 each Holder, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) 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 such 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 the Investor shall furnish to the Company such information and representations regarding Investor, 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 and/or sale under Rule 144. The Company understands that the Investor each Holder disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor such Holder is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
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 Securities and Exchange Commission (“SEC”), within thirty (30) Calendar Days as soon as practicable, but in no event later than 30 business days after the Closing Date Date, a registration statement on Form S-3 (the “Required Filing DateRegistration Statement”), a Registration Statement on Form S-3 ) to enable the resale of the Shares and Warrant Shares by the Investors from time to timetime through the automated quotation system of the Nasdaq Stock Market or in privately-negotiated transactions;
(b) use its 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 ninety (90) 120 days after the Registration Statement is filed by the Company, unless such Registration statement deadline is reviewed missed, wholly or in part, due to backlog or other delay at or by the SEC, in which case delay at or by the number Company’s independent accountants, or delay caused by any other matter beyond the control of days shall be increased to one hundred twenty (120) days after the Closing Date (the “Required Effective Date”)Company. If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required Effective date that is 120 days after the Closing Date, then the Company shall, immediately following on the Required Filing 121st day after the Closing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment issue to the Investor as compensation .01 additional shares of Common Stock (which shall be deemed to be Shares), for such delay (every Share purchased in the “Late Registration Payments”) an amount equal to one half Offering, exclusive of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investorany Warrant Shares, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding SEC (rounded up to the foregoing, in no event shall nearest Share after aggregating all Shares held by the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is dueInvestor);
(c) use its commercially 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 ending on not exceeding, with respect to each Investor’s Shares and Warrant Shares purchased hereunder, the earlier earliest of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares and Warrant Shares then held by the Investor without restriction by volume limitations pursuant to paragraph (kRule 144(k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (iiiii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement or Rule 144, and to notify each Investor promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective by the SECstatement;
(d) furnish to the Investor with respect to the Shares and Warrant Shares registered for resale under the Registration Statement such number of copies (in paper or electronic version) of the Registration Statement and the Prospectus Statement, Prospectuses (including supplemental prospectuses), ) and preliminary versions of the Prospectus filed with the Securities and Exchange Commission (“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 or Warrant Shares 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 Company, if any, for normal blue sky clearance in (i) in all U.S. jurisdictions in which any of the Shares or Warrant Shares are originally sold, and (ii) in states specified in writing by the Investor; , provided, however, that that, as to clause (ii) 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 1 6.1 and the registration of the resale of the Shares or Warrant Shares pursuant to the Registration Statement;; and
(g) advise the InvestorsInvestor, 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 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
(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 or Warrant Shares 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 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 soldresold; (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 request, as long as the Investor owns any Shares, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) 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 1 6.1 that the Investor shall furnish to the Company such information and representations regarding Investoritself, the Shares or Warrant Shares 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 resale of the Shares and/or sale under Rule 144and Warrant Shares. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination the Investor being deemed an underwriter by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 1 contract
Samples: Stock Purchase Agreement (Act Teleconferencing Inc)
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of necessary information from the Investors, prepare and file with the Securities and Exchange Commission (“"SEC”"), within thirty fifteen (3015) Calendar Business Days after the Closing Date (the “Required Filing Date”"REQUIRED FILING DATE"), a Registration Statement on Form S-3 to enable the resale of the Shares by the Investors from time to time;
(b) use its 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 ninety sixty (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (12060) days after the Closing Date (Registration Statement is filed by the “Required Effective Date”)Company. If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required Effective Datedate that is 120 days after the Closing Date (the "REQUIRED EFFECTIVE DATE"), then the Company shall, on the Business Day immediately following the Required Filing Date (if not then so filed) and or the Required Effective Date (if not then so effective)Date, as the case may be, and on each 30th day anniversary thereafter, make a payment to the Investor as partial compensation for such delay (the “Late Registration Payments”"LATE REGISTRATION PAYMENTS") an amount equal to one half of one percent (0.5%) 1% of the Purchase Price purchase price paid for the Shares purchased by the Investor, Investor and not previously sold by the Investor until the Registration Statement is filed or declared effective by the SEC. Notwithstanding , as the foregoingcase may be; provided, however, that in no event shall the total of all Late Registration Payments payments made pursuant to this paragraph (b), if any, exceed in the aggregate ten percent (10%) 5% of such Purchase Pricepurchase price. Late Registration Payments, if any, Payments will be prorated on a daily basis during each 30 day period and will be paid to the Investor by wire transfer or check within five (5) Business Days after the earlier of (i) the end of each 30 day period following the Required Effective Date or (ii) the effective date that each payment is dueof the Registration Statement;
(c) use its commercially reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus as may be necessary to keep the Registration Statement current and effective for a period ending on the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell Shares pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule "RULE 144”") or (iiiii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement 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 such number of copies (in paper or electronic version) of the Registration Statement and the Prospectus (including supplemental prospectuses), ) 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;
(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 1 6.1 and the registration of the Shares pursuant to the Registration Statement;
(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 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 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 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 '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 's Shares shall have been soldresold; (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 request, as long as the Investor owns any Shares, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) 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 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 1 6.1 that the Investor shall furnish to the Company such information and representations regarding Investoritself, 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 and/or sale under Rule 144Shares. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
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 Securities and Exchange Commission (“SEC”), within as soon as practicable, but in no event later than thirty (30) Calendar Days days after the Closing Date (the “"Required Filing Date”"), a Registration Statement registration statement on Form S-3 (the "Registration Statement") to enable the resale of the Shares and the Warrant Shares (collectively, the "Registrable Securities") by the Investors from time to timetime through the automated quotation system of the Nasdaq Stock Market or in privately-negotiated transactions;
(b) use its best commercially reasonable 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 ninety (90) days unless such after the Registration statement Statement is reviewed filed by the SEC, in which case the number of days shall be increased to one hundred twenty (120) days after the Closing Date (the “Required Effective Date”)Company. If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the date that is one hundred and twenty (120) days after the Closing Date (the "Required Effective Date"), then the Company shall, on the Business Day immediately following the Required Filing Date (if not then so filed) and or the Required Effective Date (if not then so effective)Date, as the case may be, and on each 30th day anniversary thereafter, make a payment to the Investor as compensation liquidated damages for such delay (the “"Late Registration Payments”") an amount equal to one half of one percent (0.5%) % of the Purchase Price purchase price paid for the Shares purchased by the Investor, Investor and not previously sold by the Investor until the Registration Statement is filed or declared effective by the SEC. Notwithstanding , as the foregoingcase may be; provided, however, that in no event shall the total of all Late Registration Payments payments made pursuant to this paragraph (b), if any, exceed in the aggregate ten percent (10%) 2.5% of such Purchase Price. purchase price; provided further, that no Investor shall be entitled to Late Registration PaymentsPayments if such Investor has not provided the 11. Company with the information requested by the Company pursuant to Section 7.1(h) hereof, if any, within 20 calendar days after such information has been requested by the Company. Late Registration Payments will be prorated on a daily basis during each 30 day period and will be paid to the Investor by wire transfer or check within five (5) Business Days after the earlier of (A) the end of each 30 day period following the Required Effective Date or (B) the effective date that each payment is due;of the Registration Statement.
(c) use its commercially 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 ending on not exceeding, with respect to each Investor's Registrable Securities purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell Shares pursuant to paragraph (kall Registrable Securities then held by the Investor without restriction by the volume limitations of Rule 144(e) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (iiiii) such time as all Shares Registrable Securities purchased by such Investor in this Offering have been sold pursuant to a registration statement or Rule 144, and to notify each Investor promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective by the SECstatement;
(d) furnish to the Investor with respect to the Registrable Securities registered under the Registration Statement such number of copies (in paper or electronic version) of the Registration Statement Statement, Prospectuses and Preliminary Prospectuses in conformity with the Prospectus (including supplemental prospectuses), 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 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 1 7.1 and the registration of the Shares Registrable Securities 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 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 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 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 '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 's Registrable Securities shall have been soldresold; (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 a written statement that the Company has complied with the reporting requirements of the Securities Act and the Exchange Act, a copy (in paper or electronic version) 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 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 1 that the Investor shall furnish to the Company such information and representations regarding Investor, 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 and/or sale under Rule 144. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.with
Appears in 1 contract
Samples: Common Stock and Warrant Purchase Agreement (Intrabiotics Pharmaceuticals Inc /De)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) subject to receipt of necessary information from the Investors, prepare and file with the Securities SEC as soon as practicable and Exchange Commission in no event later than sixty (“SEC”)60) days following the Second Closing (or, within thirty in case the Company’s Shareholders do not vote to approve the sale of the Additional Shares at the Second Closing, sixty (3060) Calendar Days after the Closing Date days following a Shareholder meeting at which such vote was taken) (each, the “Required Filing Date”), a Registration Statement 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 and Warrant Shares and only those additional shares of Common Stock set forth in the Disclosure Schedule (collectively, the “Registrable Shares”) by the Investors from time to time;
(b) time on Nasdaq and use its best efforts, subject to receipt of necessary information from the Investors, all reasonable efforts to cause the such Registration Statement to become be declared effective as soon promptly as practicable, but in no event later than ninety (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased possible after filing and to one hundred twenty (120) days after the Closing Date (the “Required Effective Date”). If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared remain continuously effective by the SEC on or before the Required Effective Date, then the Company shall, immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is due;
(c) use its commercially reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus as may be necessary to keep the Registration Statement current and effective for a period ending on the earlier of (i) the date on which later of the Investor may sell Shares pursuant fifth anniversary of the Second Closing, provided, however, if there is no Second Closing, then the fifth anniversary of the Initial Closing, plus, in each case, a number of days equal to paragraph (k) the number of Rule 144 under days, if any, the Securities Act Registration Statement is suspended or any successor rule (“Rule 144”) or not effective beyond the Grace Period, (ii) such time as all Registrable Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement this Agreement 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 such number of copies (in paper or electronic version) of the Registration Statement and the Prospectus (including supplemental prospectuses)Warrants, as the Investor case may reasonably requestbe, in order may immediately be sold during any 90 day period pursuant to facilitate Rule 144 under the public sale Securities Act, or other disposition (iii) the closing of all or any an acquisition of the Shares by Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Investor;
(e) file documents required of the Company Securities Act for normal blue sky clearance in states specified in writing by the Investor; provided, however, that the Company shall not be required issuance to qualify to do business such Investor and is listed on a national securities exchange 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 (eNasdaq) of this Section 1 and another entity (the registration of “Registration Period”). In the Shares pursuant to the Registration Statement;
(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 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 a view to making available to the Investor the benefits of Rule 144 or other rule that may permit the Investor to sell Shares without registration, the Company agrees to shall 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 be resold pursuant to Rule 144(k) or (B) such date as all of the Investor’s Shares shall have been sold; (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 a written statement that the Company has complied with the reporting requirements of the Securities Act and the Exchange Act, a copy (in paper or electronic version) of the Company’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information form as may be reasonably requested that permits the selling of any is available for such Shares without a registration. It shall be a condition precedent to the obligations For purposes of the Company to take any action pursuant to this Section 1 that 4.1(a), “Grace Period” shall mean a suspension under Section 4.2(b) and 4.2(c) in excess of sixty (60) days in the Investor shall furnish to the Company such information and representations regarding Investor, the Shares to be sold by Investor, and the intended method aggregate in any twelve month period of disposition of such securities as shall be required to effect the registration of the Shares and/or sale under Rule 144. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.time;
Appears in 1 contract
Samples: Securities Purchase Agreement (Fiberstars Inc /Ca/)
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of necessary information from the Investors, prepare and file with the Securities and Exchange Commission (“SEC”), within as soon as practicable, but in no event later than thirty (30) Calendar Days days after the Closing Date (the “Required Filing Date”), a Registration Statement 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 timetime through the automated quotation system of the Nasdaq Stock Market or in privately-negotiated transactions;
(b) use its best reasonable 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 ninety (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (120) days after the Closing Date (the “Required Effective Date”). If the Registration Statement (i) has not been is filed by the Required Filing Company. Notwithstanding the foregoing, if the Registration Statement is not declared effective by July 15, 2000 (the "Final Effectiveness Date") and does not remain effective for thirty (30) continuous days thereafter, the Investor shall be entitled to a stock dividend in the amount of two percent (2%) of the Shares purchased by such Investor hereunder, provided that an additional stock dividend in the amount of one and one-half percent (1.5%) of the Shares purchased hereunder shall be made at each of the first two three-month anniversaries of the Final Effective Date or (ii) if the Registration Statement has not been declared effective by and remained effective for thirty (30) continuous days from the SEC on or before the Required Effective Date, then the Company shall, immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) date of the Purchase Price paid for the Shares purchased by the Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event first effectiveness as of such three month anniversaries; provided further that any such stock dividend shall the total of all Late Registration Payments not exceed in the aggregate ten five percent (105%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is due;).
(c) use its commercially 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 ending on not exceeding, with respect to each Investor's Shares purchased hereunder, the earlier earliest of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares pursuant to paragraph (kthen held by the Investor without restriction by the volume limitations of Rule 144(e) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (iiiii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement 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;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 (in paper or electronic version) of the Registration Statement Statement, Prospectuses and Preliminary Prospectuses in conformity with the Prospectus (including supplemental prospectuses), 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 (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph (a) through (e) of this Section 1 7.1 and the registration of the Shares pursuant to the Registration Statement;, other than fees and expenses, if any, of counsel or other advisors to the Investors, provided, however, that the Company shall pay the reasonable fees and expenses of one firm of attorneys for the Investors as a group, or underwriting discounts, brokerage fees and commissions incurred by the Investors, 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 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 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 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 '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 's Shares shall have been soldresold; (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 request, as long as the Investor owns any Shares, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) 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 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 1 7.1 that the Investor shall furnish to the Company such information and representations regarding Investoritself, 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 and/or sale under Rule 144Shares. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination the Investor being deemed an underwriter by the SEC that the Investor is deemed an underwriter 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) 120 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Registration Procedures and Expenses. The (a) Except for such times as the Company shallmay be required to suspend the use of a prospectus forming a part of the Registration Statement (as defined below), the Company will:
(ai) subject on a best efforts basis within thirty (30) days after it has received from Xxxxxxx-Xx Xxxxx, Inc. ("Roche") the financial information required to receipt be furnished by Roche to the Company under Section 8.8 of necessary information from the InvestorsSale and Purchase Agreement, dated February 2, 2004, between the Company Roche, prepare and file with the Securities and Exchange Commission (“SEC”), within thirty (30) Calendar Days after the Closing Date (the “Required Filing Date”), a Registration Statement registration statement on Form S-3 to enable (the "Registration Statement") covering the resale of the Shares by the Investors from time to timeeach Purchaser;
(bii) use its best effortsefforts to cause the Registration Statement, as amended, subject to receipt of necessary information from the InvestorsPurchasers on the questionnaire attached as Appendix E hereto, to cause the Registration Statement to become effective under the Securities Act as soon as practicable, practicable but in any event no event later than ninety (90) days unless after the Closing Date. If such Registration statement Statement covering the Shares is reviewed not declared effective by the SEC, in which case the number of days shall be increased Commission on or prior to one hundred twenty ninety (12090) days after the Closing Date, the Company will make pro rata payments to each Purchaser, as liquidated damages and not as a penalty, in an amount per 30-day period (or pro rata portion thereof) equal to 1.0% of the aggregate amount paid by such Purchaser on the Closing Date (to the “Required Effective Date”). If the Company until such Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been is declared effective by the SEC on or before the Required Effective Date, then the Company shall, immediately Commission. Such payments shall be made to each Purchaser in cash not later than three business days following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on end of each 30th 30-day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is dueperiod;
(ciii) use its commercially 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 (A) as may be necessary to keep the Registration Statement current and continuously effective for a period ending on until the earlier of (i) the date on which second anniversary of the Investor may sell Shares pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) Closing Date, or (ii) such time as all Shares purchased by such Investor in this Offering the Purchasers have been sold pursuant to a registration statement or Rule 144, and to notify each Investor promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective (B) as may be reasonably requested by the SECa Purchaser in order to incorporate information concerning such Purchaser or such Purchaser's intended method of distribution;
(div) so long as the Registration Statement is effective covering the resale of Shares owned by the Purchasers, furnish to each Purchaser with respect to the Investor Shares registered under the Registration Statement (and to each underwriter, if any, of such Shares) such reasonable number of copies (in paper or electronic version) of the Registration Statement prospectuses and the Prospectus (including supplemental prospectuses), such other documents as the Investor such Purchaser may reasonably request, request in order to facilitate the public sale or other disposition of all or any of the Shares by the Investorsuch Purchaser;
(ev) 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 InvestorPurchasers; provided, however, that the Company shall not be required to qualify to do business or consent to service of process generally in any jurisdiction in which it the Company is not now so qualified or has not so consented;
(fvi) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph paragraphs (a) through (ec) of this Section 1 6.1 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 Purchasers or underwriting discounts, brokerage fees and commissions incurred by the Purchasers, if any, in connection with an underwritten offering of the Shares;
(gvii) 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 it will promptly use its all commercially reasonable efforts to prevent the issuance of any stop order or other order suspending the effectiveness of such Registration Statement and, if such an order is issued, to obtain its the withdrawal thereof at the earliest possible moment time and to notify each Purchaser of the issuance of such order and the resolution thereof;
(viii) furnish to each Purchaser, on the date that such Registration Statement becomes effective, (x) a letter, dated such date, of outside counsel representing the Company (and reasonably acceptable to such Purchaser) addressed to such Purchaser, confirming the effectiveness of such Registration Statement and, to the knowledge of such counsel, the absence of any stop order, and (y) in the case of an underwriting, (A) an opinion addressed to such Purchaser, dated such date, of such outside counsel, in such form and substance as is required to be given to the underwriters, and (B) a letter addressed to such Purchaser, dated such date, from the Company's independent certified public accountants, in such form and substance as is required to be given by the Company's independent certified public accountants to such underwriters;
(ix) provide to each Purchaser and its representatives, if requested, the opportunity to conduct a reasonable inquiry of the Company's financial and other records during normal business hours and make available its officers, directors and employees for questions regarding information which such stop Purchaser may reasonably request in order should to complete its due diligence, in each case as is customary for similar due diligence examinations; provided that, if the foregoing inspection and information gathering would otherwise disrupt the Company's conduct of its business, such inspection and information gathering shall, to the greatest extent possible, be issuedcoordinated on behalf of the all of the Purchasers by one counsel designated by and on behalf of the Purchasers; and
(hx) permit counsel for the Purchasers to review the Registration Statement and all amendments and supplements thereto, and any comments made by the staff of the Commission and the Company's responses thereto, within a reasonable period of time prior to the filing thereof with the Commission (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); provided, that in the case of clauses (ix) and (x) above, the Company shall not be required to provide, and shall not provide, any Purchaser with material, non-public information unless such Purchaser agrees to receive such information and enters into a written confidentiality agreement with the Company.
(b) The Company shall be permitted to suspend for one or more periods (provided that the aggregate length of such suspension shall not exceed thirty (30) days in any ninety (90)-day day period or ninety (90) days in aggregate in any 365 day period) the actions required under Sections 6.1(a)(iii) to the extent that the Board of Directors of the Company concludes in good faith that because of valid business reasons, including, but not limited to, the acquisition or divestiture of assets, pending corporate developments and similar events, it is in the best interests of the Company to suspend such use of the Registration Statement and the prospectus used in connection therewith.
(c) With a view to making available to the Investor Purchasers the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the Commission that may at any time permit the Investor Purchaser to sell Shares 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) six months after such date as all of the Investor’s Purchasers' 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 Purchasers' Shares shall have been soldresold; (ii) file with the SEC Commission 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 request, as long as the Purchaser owns any Shares, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) 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 Purchaser of any rule or regulation of the Commission 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 1 that the Investor shall furnish to the Company such information and representations regarding Investor, 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 and/or sale under Rule 144. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 1 contract
Registration Procedures and Expenses. The Company shallwill:
(a) 1.1.1 subject to receipt of necessary information from each Purchaser, including all information set forth in Schedule 1 attached hereto, if but only if the InvestorsCompany receives a minimum of $800,000 in cumulative Subscription Price from the sale of Notes and Warrants to all Purchasers, use commercially reasonable efforts to prepare and file with the Securities SEC, within the later of (i) sixty (60) days after the Closing of at least $800,000 in cumulative Subscription Price in Notes and Exchange Commission Warrants for all Purchasers (the “SECThreshold Closing”), ) and (ii) thirty (30) days after earlier of (A) the Closing of at least $2,000,000 in cumulative Subscription Price in Notes and Warrants for all Purchasers or (B) sixty (60) days after the Threshold Closing if the Company has not given written notice in good faith to each Purchaser within thirty (30) Calendar Days days after the Threshold Closing Date that the Company is, at the time of such notice, involved in active negotiations with one or more additional investors to sell Notes and Warrants to such investors, but in no case shall the date of the filing deadline be later than November 30, 2007 (the “Required Filing DateDate Deadline”), a registration statement (the “Registration Statement Statement”) on Form S-3 SB-2 (or, if Form SB-2 is not then available to the Company, on such appropriate form as is then available to the Company) to enable the resale of as many as practicable of the Shares Common Stock and the Common Stock issuable upon conversion of the Notes and exercise of all of the Warrants by the Investors from time Purchasers and the placements agents under the Purchase Agreement on a 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 timethe Registration Statement; (2) the date on which all such shares are transferred in compliance 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, the Company will not be liable to the Purchasers or placement agents for any liquidated damages for any Effectiveness Failure pursuant to Section 1.5 if (A) such Effectiveness Failure is solely 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 best commercially reasonable 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 ninety within 90 days after the date on which the Company files the Registration Statement with the SEC (90) 120 days unless such if the Registration statement Statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (120) days after the Closing Date (the “Required Effective DateDate Deadline”). If ; provided, however, that if the Company is notified by the SEC that the Registration Statement (i) has will not been filed by be reviewed or is no longer subject to further review and comments, the Required Filing Effective Date or (ii) has not been declared effective by Deadline will be the SEC fifth OTC trading day following the date on or before the Required Effective Date, then which the Company shall, immediately following is so notified subject to any reasonable delay which Issuer and Issuer’s counsel in their sole discretion deem necessary in connection with the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half disclosure of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is duematerial 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 ending on (the ”Registration Period”) not exceeding, with respect to the Purchasers’ Common Stock, the earlier of (i) the second anniversary of the Final Closing (but with respect to Common Stock that are issuable upon exercise of the Warrants, the foregoing date on which will be the Investor may sell Shares pursuant to paragraph second anniversary of the date the related Warrant was exercised), (kii) of the Rule 144 under the Securities Act or any successor rule Eligibility Date, and (“Rule 144”) or (iiiii) 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 statement, (B) to or Rule 144through 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;
1.1.4 promptly furnish to notify each Investor promptly upon Purchaser with respect to the Common Stock registered under the Registration Statement and each post-effective amendment thereto, being declared effective by the SEC;
(d) furnish to the Investor such reasonable number of copies (in paper or electronic version) of the Registration Statement and Prospectus, including any supplements to or amendments of the Prospectus (including supplemental prospectuses), 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 InvestorPurchasers;
(e) file documents required 1.1.5 promptly take such action as may be necessary to qualify, or obtain, an exemption for the Common Stock under such 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 InvestorPurchasers; provided, however, that 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 (other than underwriting discounts and commissions, if any) actually incurred in connection with the procedures in paragraph (a) through (e) of this Section 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), 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 InvestorsPurchasers, promptly 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 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
(h) , with a view to making available respect to the Investor Registration Statement or any post-effective amendment thereto, when the benefits same has become effective.
1.1.8 In the event of Rule 144 or other rule that may permit the Investor to sell Shares without registrationan underwritten offering of Registrable (an “Underwritten Offering”), the Company agrees 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 use 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 commercially reasonable efforts to: (iexecutive officers available for such purpose if so requested by the managing underwriter for such offering) make as are reasonably requested by the managing underwriter in order to expedite or facilitate the sale of such Registrable Securities. The representations, warranties 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 (B) such date as all of the Investor’s Shares shall have been sold; (ii) file with the SEC in a timely manner all reports and other documents required covenants of the Company under in any underwriting agreement which are made to or for the Securities Act and under the Exchange Act; and (iii) furnish benefit of any underwriters, to the Investor upon request extent applicable, will also be made to and 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 Securities, 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 written statement that 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 has complied with and any of its subsidiaries (collectively, the reporting requirements of the Securities Act and the Exchange Act, a copy (in paper or electronic version“Records”) of the Company’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Qas will be reasonably necessary to enable them to exercise their due diligence responsibility, and (C) such other information as may be reasonably requested that permits cause the selling of any such Shares without registration. It shall be a condition precedent to the obligations officers, directors and employees of the Company to take supply all information reasonably requested by any action pursuant 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 Securities hereunder, use best efforts to this Section 1 that furnish to each Participating Holder and to the Investor shall furnish 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 information and representations regarding Investormatters of the type customarily covered by opinions or comfort letters, as the Shares to be sold by Investorcase may be, as each such Participating Holder and the intended method of disposition of such securities as shall managing underwriter, if any, reasonably requests.
1.1.8.3 The Company will not be required obligated to effect the registration of the Shares and/or sale under Rule 144. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is deemed an underwriter shall not relieve the Company of (x) more than three (3) Registration Statements pertaining to Underwritten Offerings within any obligations it has hereunder.24 month period or
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 Securities and Exchange Commission (“SEC”), within thirty (30) Calendar Days calendar days after the Closing Date (the “Required Filing Date”), a Registration Statement on Form S-3 S-1 to enable the resale of the Shares by the Investors from time to time;
(b) use its 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 sixty (60) days after the actual filing date of the Registration Statement with the SEC (the “Actual Filing Date”) or ninety (90) days unless such after the Actual Filing Date if the Registration statement Statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (120) days after the Closing Date SEC (the “Required Effective Date”). If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required Effective Date, then the Company shall, immediately following shall on the first business day after the Required Filing Date (if not then so filed) and filed or the Required Effective Date (if not then so declared effective), and on each 30th day anniversary thereafteras the case may be, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one percent (1%) of the Purchase Price paid for the Shares purchased by the Investor, and on each 30th day anniversary thereafter make a payment to the Investor as compensation for such delay an amount equal to one-half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the InvestorInvestor (collectively, the “Late Registration Payments”), until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is due;
(c) use its commercially reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus as may be necessary to keep the Registration Statement current and effective for a period ending on the earlier of (i) the date as all of the Investor’s Shares shall have been sold, (ii) the date on which the Investor may sell Shares pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (iiiii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement 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 such number of copies (in paper or electronic version) of the Registration Statement and the Prospectus (including supplemental prospectuses), 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;
(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 1 and the registration of the Shares pursuant to the Registration Statement;
(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 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 a view to making available to the Investor the benefits of Rule 144 or other rule that may permit the Investor to sell Shares without registration, the Company 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 be resold pursuant to Rule 144(k) or (B) such date as all of the Investor’s Shares shall have been sold; (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 a written statement that the Company has complied with the reporting requirements of the Securities Act and the Exchange Act, a copy (in paper or electronic version) 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 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 1 that the Investor shall furnish to the Company such information and representations regarding Investor, 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 and/or sale under Rule 144. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder. The Company and the Investor agree and acknowledge that each Investor individually negotiated the terms of the transactions contemplated hereby and are of the view that the Investors are not acting as a “group” for purposes of Section 13(d) under the Exchange Act.
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 Securities and Exchange Commission Except during a Suspension (“SEC”as defined below), within thirty (30) Calendar Days after the Closing Date (the “Required Filing Date”), a Registration Statement on Form S-3 to enable the resale of the Shares by the Investors from time to time;
(b) use its best effortsCompany will, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective Purchasers:
(i) as soon as practicable, but in no event later than ninety forty-five (45) days following the Closing Date (the “Filing Date”), use reasonable best efforts to prepare and file with the Commission a registration statement on Form S-3 (the “Registration Statement”) covering the resale of the Shares and the Warrant Shares of each Purchaser that has complied with Section 6.4, 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 exchange for or with respect to any of the foregoing, in each case held at the relevant time by a Purchaser (the “Registrable Securities”);
(ii) use reasonable best efforts to cause the Registration Statement, as amended, to become effective under the Securities Act as soon as practicable but in any event no later than 4:00 p.m. Eastern Time on the ninetieth (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (120) days day after the Closing Date (the “Required Effective Date”). If ;
(iii) use reasonable best efforts to cause the prospectus to be filed with the Commission pursuant to Rule 424(b) under the Securities Act as soon as practicable but in any event no later than 9:00 a.m. Eastern Time the next business day following the date such Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been is declared effective by the SEC on or before the Required Effective Date, then the Company shall, immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is dueCommission;
(civ) 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 (A) as may be necessary to keep the Registration Statement current and continuously effective for a period ending on until the earlier of (i) the date on which second anniversary of the Investor may sell Shares pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) Closing Date, or (ii) such time as all Shares and Warrant Shares purchased by such Investor in this Offering the Purchasers have been sold pursuant to a registration statement or Rule 144, and to notify each Investor promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective (B) as may be reasonably requested by the SECa Purchaser in order to incorporate information concerning such Purchaser or such Purchaser’s intended method of distribution;
(dv) so long as the Registration Statement is effective covering the resale of Registrable Securities owned by the Purchasers, furnish to each Purchaser with respect to the Investor Registrable Securities registered under the Registration Statement (and to each underwriter, if any, of such Registrable Securities) such reasonable number of copies (in paper or electronic version) of the Registration Statement prospectuses and the Prospectus (including supplemental prospectuses), such other documents as the Investor such Purchaser may reasonably request, request in order to facilitate the public sale or other disposition of all or any of the Shares Registrable Securities by the Investorsuch Purchaser;
(evi) use commercially reasonable efforts to file documents required of the Company for normal blue sky Blue Sky clearance in the States of New York and Wisconsin and any other states specified in writing by the InvestorPurchasers; provided, however, that the Company shall not be required to qualify to do business or consent to service of process generally in any jurisdiction in which it the Company is not now so qualified or has not so consentedqualified;
(fvii) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph paragraphs (ai) through (evi) of this Section 1 6.1 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 Purchasers or underwriting discounts, brokerage fees and commissions incurred by the Purchasers, if any, in connection with an underwritten offering of the Registrable Securities;
(gviii) 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 it will promptly use its all commercially reasonable efforts to prevent the issuance of any stop order or other order suspending the effectiveness of such Registration Statement and, if such an order is issued, to obtain its the withdrawal thereof at the earliest possible moment time and to notify each Purchaser of the issuance of such order and the resolution thereof;
(ix) furnish to each Purchaser, two (2) business days after the date that such Registration Statement becomes effective, (x) a letter, dated such date, of outside counsel representing the Company (and reasonably acceptable to such Purchaser) addressed to such Purchaser, confirming the effectiveness of such Registration Statement and, to the knowledge of such counsel, the absence of any stop order, and (y) in the case of an underwriting, an opinion addressed to such Purchaser, dated such date, of such outside counsel, in such form and substance as is required to be given to the underwriters;
(x) provide to each Purchaser and its representatives, if requested, the opportunity to conduct a reasonable inquiry of the Company’s financial and other records during normal business hours and make available its officers, directors and employees for questions regarding information which such stop Purchaser may reasonably request in order should to fulfill any due diligence obligation on its part, provided, that in the case of this clause (x), the Company shall not be issuedrequired to provide, and shall not provide, any Purchaser with material, non-public information unless such Purchaser agrees to receive such information and enters into a written confidentiality agreement with the Company; and
(hxi) not less than three trading days prior to the filing of a Registration Statement and not less than two trading days prior to the filing of any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed to be incorporated therein by reference) or, in the case of comments made by the staff of the Commission and the Company’s responses thereto, within a reasonable period of time following the receipt thereof by the Company, furnish to each Purchaser copies of all such documents proposed to be filed or copies of such correspondence from and to the Commission relating to the Registration Statement, as the case may be, which documents (other than those incorporated or deemed to be incorporated by reference) 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 relating to such Purchaser as such Purchaser may reasonably propose; provided, however, that such comments from such Purchaser must be received by the Company no later than one trading day prior to the filing of such document with the Commission. Notwithstanding any other provision of this Agreement, the Company will have no obligation to deliver or make available to any Purchaser any Registration Statement or Prospectus containing any material, nonpublic information unless such Purchaser specifically consents in advance to receive such material, nonpublic information in writing and such Purchaser has executed an agreement to keep such material, nonpublic information confidential and refrain from trading in any Company security for so long as such information remains material, nonpublic information.
(b) The Company shall be permitted after the Required Effective Date, to suspend for one or more periods (each such period, a “Suspension”) the actions required under Sections 6.1(a)(i) through (iv) to the extent that the Board of Directors of the Company concludes in good faith and based on the advice of counsel that the disclosure of additional information in the prospectus is necessary. Notwithstanding the foregoing, the Company agrees that no Suspension shall be for a period of an aggregate in any 365-day period of longer than 60 days.
(c) With a view to making available to the Investor Purchasers the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the Commission 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) six months after such date as all of the Investor’s Shares Purchasers’ 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 Purchasers’ Registrable Securities shall have been soldresold; (ii) file with the SEC Commission 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 request, as long as the Purchaser owns any Registrable Securities, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) 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 Purchaser of any rule or regulation of the Commission 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 the Investor shall furnish to the Company such information and representations regarding Investor, 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 and/or sale under Rule 144. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 1 contract
Samples: Securities Purchase Agreement (North American Scientific Inc)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) subject to receipt of necessary information from the Investors, prepare and file with the Securities and Exchange Commission (“SEC”), within thirty (30) Calendar Days SEC on or before the date one month after the Closing Date a registration statement on Form S-3 (the “Required Filing DateRegistration Statement”), a Registration Statement on Form S-3 ) to enable the resale of the Shares and the Warrant Shares by the Investors from time and use reasonable best efforts to time;
(b) use its best efforts, subject respond to receipt of necessary information comments from the Investors, to SEC promptly and cause the such Registration Statement to become be declared effective as soon promptly as practicable, but in no event later than ninety (90) days unless such Registration statement is reviewed by practicable after filing and to remain continuously effective until the SEC, in which case the number earlier of days shall be increased to one hundred twenty (120) days after the Closing Date (the “Required Effective Date”). If the Registration Statement (i) has not been filed by the Required Filing Date second anniversary of the Closing, or (ii) has such time as all Shares purchased by the Investors pursuant to this Agreement have been sold thereunder (the “Registration Period”). For each full calendar month after the Closing that the Registration Statement is not been be declared effective by the SEC starting with three (3) months after the Closing and ending with twenty-four (24) months after the Closing, each Investor shall be issued two percent of the number of Shares originally issued to the Investor (the “Penalty Shares”) within fifteen days. Thus, for example, if an Investor purchased 100,000 Shares, and the Registration Statement was not declared effective until four months and five days after the Closing, then on or before the Required Effective Date, then the Company shall, immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent dates (10%a) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis four months and will be paid to Investor by wire transfer or check within five (5) Business Days fifteen days after the date that each payment is due;Closing and (b) five months and fifteen days after the Closing, such Investor would be issued 2,000 Penalty Shares. All such Penalty Shares shall be considered as Shares for purposes of this Agreement, except Section 1.
(cb) 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 used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period ending on until the earlier end of the Registration Period;
(ic) the date on which the Investor may sell Shares pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (ii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement or Rule 144, and to notify each Investor Investors promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective by the SEC;
(d) furnish to the Investor such number of copies (in paper or electronic version) effectiveness of the Registration Statement and furnish to the Prospectus (including supplemental prospectuses)Investors with respect to the shares of Common Stock 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 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 or Warrant Shares by the Investor;
(ed) 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;
(e) use its reasonable best efforts to cause the Shares and Warrant Shares to be listed on Nasdaq in connection with the filing of the Registration Statement under Section 4.1(a);
(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 1 4.1 and the registration of the Shares and the Warrant Shares pursuant to the Registration Statement;Statement other than fees and expenses, if any, of counsel or other advisers to the Investors or underwriting discounts, brokerage fees and commissions incurred by the Investors, if any.
(g) advise the Investors, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order provide that all Shares and Warrant Shares covered by the SEC delaying or suspending the effectiveness of the Registration Statement or of will be listed on the initiation of any proceeding for that purpose; and 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 a view to making available to the Investor the benefits of Rule 144 Nasdaq National Market or other rule that may permit the Investor to sell Shares without registration, the Company 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 be resold pursuant to Rule 144(k) or (B) such date as all of the Investor’s Shares shall have been sold; (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 a written statement that the Company has complied with the reporting requirements of the Securities Act and the Exchange Act, a copy (in paper or electronic version) of securities market on which the Company’s most recent Annual Report on Form 10-K Common Stock is then listed or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested that permits the selling of any such Shares without registrationtraded. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 1 4.1 that the Investor shall furnish to the Company such information and representations regarding Investoritself, the Shares shares of Common Stock 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 and/or sale under Rule 144. The Company understands that and the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunderWarrant Shares.
Appears in 1 contract
Samples: Stock and Warrant Purchase Agreement (California Micro Devices Corp)
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of necessary information from the Investors, prepare and file with the Securities and Exchange Commission (“SEC”), within thirty fifteen (3015) Calendar Business Days after the Closing Date (the “Required Filing Date”"REQUIRED FILING DATE"), a Registration Statement on Form S-3 to enable the resale of the Shares by the Investors from time to time;
(b) use its 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 ninety sixty (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (12060) days after the Closing Date (Registration Statement is filed by the “Required Effective Date”)Company. If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required Effective Datedate that is one hundred and twenty (120) days after the Closing Date (the "REQUIRED EFFECTIVE DATE"), then the Company shall, on the Business Day immediately following the Required Filing Date (if not then so filed) and or the Required Effective Date (if not then so effective)Date, as the case may be, and on each 30th day anniversary thereafter, make a payment to the Investor as partial compensation for such delay (the “Late Registration Payments”"LATE REGISTRATION PAYMENTS") an amount equal to one half of one percent (0.51%) of the Purchase Price purchase price paid for the Shares purchased by the Investor, Investor and not previously sold by the Investor until the Registration Statement is filed or declared effective by the SEC. Notwithstanding , as the foregoingcase may be; provided, however, that in no event shall the total of all Late Registration Payments payments made pursuant to this paragraph (b), if any, exceed in the aggregate ten five percent (105%) of such Purchase Pricepurchase price. Late Registration Payments, if any, Payments will be prorated on a daily basis during each 30 day period and will be paid to the Investor by wire transfer or check within five (5) Business Days after the earlier of (i) the end of each thirty day period following the Required Effective Date or (ii) the effective date that each payment is dueof the Registration Statement;
(c) use its commercially reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus as may be necessary to keep the Registration Statement current and effective for a period ending on the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell Shares pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule "RULE 144”") or (iiiii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement 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 such number of copies (in paper or electronic version) of the Registration Statement and the Prospectus (including supplemental prospectuses), ) 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;
(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 1 6.1 and the registration of the Shares pursuant to the Registration Statement;
(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 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 a view to making available to the Investor the benefits of Rule 144 or 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 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 '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 's Shares shall have been soldresold; (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 request, as long as the Investor owns any Shares, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) 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 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 1 6.1 that the Investor shall furnish to the Company such information and representations regarding Investoritself, 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 and/or sale under Rule 144Shares. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
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 Securities and Exchange Commission (“SEC”), within thirty fifteen (3015) Calendar Business Days after the Closing Date (the “Required Filing Date”), a Registration Statement on Form S-3 to enable the resale of the Shares and the AIR Shares by the Investors from time to time;
(b) use its 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 ninety (90) days unless such after the Registration statement Statement is reviewed filed by the SECCompany, in which case the number of days shall be increased to or one hundred and twenty (120) days after in the Closing Date event the SEC reviews such filing (the “Required Effective Effectiveness Date”). If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared become effective by the SEC on or before the Required Effective Effectiveness Date, then the Company shall, on the Business Day immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective)such date, and on each 30th day anniversary thereafter, or such shorter period as may be applicable, until such registration statement is filed or effective, as applicable, make a payment to the Investor as partial compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.51%) of the Purchase Price paid for the Shares and the related Additional Investment Rights purchased by the Investor, Investor and not previously sold by the Investor until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoingeffective, as applicable; provided, however, that in no event shall the total of all Late Registration Payments payments made pursuant to this paragraph (b), if any, exceed in the aggregate ten eight percent (108%) of such the Purchase Price. Late Registration Payments, if any, Payments will be prorated on a daily basis during each 30 day period and will be paid to the Investor by wire transfer or check within five (5) Business Days after the date that earlier of the end of each payment is due30 day period, or such shorter period as may be applicable, following the Required Filing Date or Required Effectiveness Date, as applicable;
(c) use its commercially reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus as may be necessary to keep the Registration Statement current and effective for a period ending on the earlier of (i) the date on which the Investor may sell Shares and AIR Shares, if purchased, pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (ii) such time as all Shares purchased by such Investor in this Offering and AIR Shares, if purchased, have been sold pursuant to a registration statement 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) submit to the SEC, within three (3) Business Days after the Company learns that no review of the Registration Statement will be made by the staff of the SEC or that the staff of the SEC has no further comments on the Registration Statement, as the case may be, a request for acceleration of effectiveness of the Registration Statement to a time and date not later than 48 hours after the submission of such request;
(e) keep the Registration Statement effective pursuant to Rule 415 at all times until the earlier of (i) the date as of which the Investors may sell all of the Shares and the AIR Shares, if purchased, covered by such Registration Statement without restriction pursuant to Rule 144(k) (or successor thereto) promulgated under the Securities Act or (ii) the date on which the Investors shall have sold all the Shares and the AIR Shares, if purchased, covered by such Registration Statement;
(f) ensure that the 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;
(g) furnish to the Investor such number of copies (in paper or electronic version) of the Registration Statement and the Prospectus (including supplemental prospectuses), ) as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares and the AIR Shares by the Investor;
(eh) 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;
(fi) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph (a) through (eh) of this Section 1 6.1 and the registration of the Shares and the AIR Shares pursuant to the Registration Statement;
(gj) 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 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
(hk) with a view to making available to the Investor the benefits of Rule 144 or and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares and AIR Shares 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 and AIR 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 soldresold; (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 request, as long as the Investor owns any Shares or any AIR Shares, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) 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 or AIR Shares without registration. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 1 6.1 that the Investor shall furnish to the Company such information and representations regarding Investoritself, 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 and/or sale under Rule 144and the AIR Shares. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall:
(aA) subject to receipt of necessary information from the Investors, prepare and file with the Securities and Exchange Commission (“"SEC”"), within thirty sixty (3060) Calendar Days after the Closing Date (the “Required Filing Date”"REQUIRED FILING DATE"), a Registration Statement on Form S-3 or such other form as is available to the Company to enable the resale of the Shares by the Investors from time to timetime of (i) the Shares, (ii) the Warrant, and (iii) the Warrant Shares (collectively, the "REGISTRABLE SECURITIES");
(bB) use its 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 ninety (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (120) days Calendar Days after the Closing Date Registration Statement was filed with the SEC (the “Required Effective Date”"REQUIRED EFFECTIVE DATE"). If the Registration Statement (i) has not been filed by on or before the Required Filing Date Date, or (ii) has not been declared effective by the SEC on or before the Required Effective DateDate because of the Company's breach of this provision, or does not remain effective (any such failure being referred to as an "Event"), then the Investor shall be entitled to receive from the Company, as payment in full satisfaction for such Event, warrants to purchase an aggregate number of shares of Common Stock equal to 1% of the number of Shares upon the same terms as the Warrants (i) at the time of such Event, and (ii) upon each monthly anniversary of such Event until the Event is cured, up to a maximum aggregate amount of 10% of the Shares (the "LATE REGISTRATION WARRANTS"). In the event of changes in the outstanding Common Stock of the Company shallby reason of a stock dividend, immediately following stock split, reverse stock split, reorganization, recapitalization, merger, consolidation, liquidation, separation, combination or exchange of stock, change in the Required Filing Date Company's business structure or sale or transfer of all or any part of the Company's business or assets (if not then so filed) and the Required Effective Date (if not then so effectivereferred to as a "Capital Adjustment"), and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “number of Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event Warrants shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of be adjusted consistent with such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is dueCapital Adjustment;
(cC) use its commercially reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus as may be necessary to keep the Registration Statement current and effective for a period ending on the earlier of (i) the date on which the Investor may sell Shares Registrable Securities pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule "RULE 144”") or (ii) such time as all Shares Registrable Securities purchased by such Investor in this Offering have been sold pursuant to a registration statement 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;
(dD) furnish to the Investor such number of copies (in paper or electronic version) of the Registration Statement and the Prospectus (including supplemental prospectuses), 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;
(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 1 and the registration of the Shares pursuant to the Registration Statement;
(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 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 a view to making available to the Investor the benefits of Rule 144 or other rule that may permit the Investor to sell Shares without registration, the Company 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 be resold pursuant to Rule 144(k) or (B) such date as all of the Investor’s Shares shall have been sold; (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 a written statement that the Company has complied with the reporting requirements of the Securities Act and the Exchange Act, a copy (in paper or electronic version) 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 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 1 that the Investor shall furnish to the Company Company, within two (2) business days of the Company's written request, such information and representations regarding the Investor, the Shares Registrable Securities 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 Registrable Securities and/or sale under Rule 144. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 1 contract
Samples: Registration Rights Agreement (Arcadia Resources, Inc)
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of necessary information from as soon as practicable, but in no event later than thirty days following the InvestorsClosing Date (the "Filing Deadline"), prepare and file with the Securities and Exchange Commission (“SEC”), within thirty (30) Calendar Days after SEC the Closing Date (the “Required Filing Date”), a Registration Statement on Form S-3 relating to enable the resale of the Common Stock and or Conversion Shares (including shares of Common Stock issuable as a result of an anti-dilution adjustment to the Conversion Price (as defined in the Articles of Amendment) and any capital stock of the Company issued with respect to the Shares or the Conversion Shares as a result of any stock split, stock dividend, recapitalization, exchange or similar event or otherwise (collectively, the "Registrable Securities") by the Investors Purchaser and the Other Purchasers from time to timetime on the NYSE, or the facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions;
(b) use its best efforts, subject to receipt of necessary information from the InvestorsPurchasers, to cause the SEC to declare the Registration Statement to become effective as soon as practicablewithin 45 days or, but in no event later than ninety (90) days unless such if the Registration statement Statement is reviewed selected for review by the SEC, in which case the number of days shall be increased to one hundred twenty (120) 120 days after the Closing Date (Date, and in any event no later than five business days following notification from the “Required Effective Date”). If SEC that the Registration Statement will not be subject to review or that the SEC has no further comments to the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required "Effective Date, then the Company shall, immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effectiveDeadline"), and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is due;
(c) use its commercially reasonable best efforts to promptly 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 ending on until the earlier earliest of (i) one year after the effective date on which of the Investor may sell Shares Registration Statement or (ii) such time as Registrable Securities become eligible for resale by each of the Purchasers without any volume limitations or other restrictions pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor other rule (“Rule 144”) or (ii) 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 Shares purchased by such Investor in this Offering of the Registrable Securities have been sold pursuant to a registration statement the Registration Statement 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 Purchaser with respect to the Registrable Securities registered under the Registration Statement (and to each underwriter, if any, of such Registrable Securities) such number of copies (in paper or electronic version) of the Registration Statement prospectuses and the Prospectus (including supplemental prospectuses), 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 InvestorPurchaser;
(e) file documents required of the Company for normal blue sky Blue Sky clearance in 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;
(f) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph paragraphs (a) through (e) of this Section 1 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 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) 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) in order to enable the Purchasers to sell the Registrable Securities under Rule 144 to the Securities Act, for a period of one year from Closing, use its reasonable best efforts to comply with the issuance requirements of any stop order Rule 144, including without limitation, use its reasonable best efforts to comply with the requirements of Rule 144(c)(1) with respect to public information about the Company and to timely file all reports required to be filed by the SEC delaying or suspending Company under the effectiveness of Exchange Act.
(j) ensure that the 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 initiation circumstances in which they were made) not misleading;
(k) notify the Purchaser in writing of the happening of any proceeding for 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 purpose; and it will the Company shall endeavor that such notice not contain any material, nonpublic information), and, promptly prepare a supplement or amendment to such Registration Statement to correct such untrue statement or omission;
(l) use its commercially reasonable 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 prompt withdrawal of such order or suspension and to notify each Purchaser who holds Registrable Securities being sold of the issuance of such order and the resolution thereof or its withdrawal at receipt of actual written notice of the earliest possible moment if initiation or written threat of any proceeding for such stop order should be issuedpurpose; and
(hm) with a view to making available include in the "plan of distribution" section of the Registration Statement disclosure substantially to the Investor the benefits of Rule 144 effect that: "The selling stockholders may enter into derivative transactions with third parties, or other rule that may permit the Investor sell securities not covered by this prospectus to sell Shares without registration, the Company agrees to use its commercially reasonable efforts to: third parties in privately negotiated transactions."
(in) make refrain from preparing 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 (B) such date as all of the Investor’s Shares shall have been sold; (ii) file filing with the SEC in a timely manner all reports and other documents required of Registration Statements until the Company under the Securities Act and under the Exchange Act; and (iii) furnish Registration Statement relating to the Investor upon request a written statement that the Company has complied with the reporting requirements of the Registrable Securities Act and the Exchange Act, a copy (in paper or electronic version) 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 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 1 that the Investor shall furnish to the Company such information and representations regarding Investor, 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 and/or sale under Rule 144is effective. The Company understands that the Investor Purchaser disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is Purchaser being deemed an underwriter shall not relieve the Company of any obligations it has hereunder.. If the SEC requires that the Purchaser be named as an underwriter in the Registration Statement, the Purchaser may (and the Company will use its best efforts to allow) withdraw its Securities from the Registration Statement. A draft of the proposed form of the Registration Statement Questionnaire related to the Registration Statement to be completed by the Purchaser is attached hereto as Appendix I.
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 Securities and Exchange Commission (“SEC”), within thirty ten (3010) Calendar Days business days after the Closing Date (the “Required Filing 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 timetime through the automated quotation system of the Nasdaq Stock Market or in privately-negotiated transactions, and provide the Investor at least two (2) business days to review and provide comments to the Registration Statement before filing with the SEC;
(b) use its 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 ninety sixty (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (12060) days after the Closing Date (Registration Statement is filed by the “Required Effective Date”)Company. If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the date that is 90 days after the Closing Date (the "Required Effective Date"), then the Company shall, immediately following on the Required Filing Date (if not then so filed) 91st day and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as partial compensation for such delay (the “"Late Registration Payments”") an amount equal to one half of one percent (0.5%) 1% of the Purchase Price purchase price paid for the Shares purchased by the Investor, Investor and not previously sold by the Investor (but in no event to exceed 8% in the aggregate) until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all The Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis during each 30 day period and will be paid to the Investor by wire transfer or check within five (5) Business Days business days after the earlier of (i) the end of each 30 day period following the Required Effective Date or (ii) the effective date that each payment is dueof the Registration Statement;
(c) use its commercially 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 ending on not exceeding, with respect to 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 pursuant to paragraph (kthen held by the Investor without restriction by the volume limitations of Rule 144(e) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (iiiii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement or Rule 144statement, 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 (in paper or electronic version) of the Registration Statement and the Prospectus Statement, Prospectuses (including supplemental prospectuses), ) and preliminary versions of the Prospectus filed with the Securities Exchange Commission ("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 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 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 1 6.1 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 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 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 '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 's Shares shall have been soldresold; (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 request, as long as the Investor owns any Shares, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) 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 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 1 6.1 that the Investor shall furnish to the Company such information and representations regarding Investoritself, 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 and/or sale under Rule 144Shares. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination the Investor being deemed an underwriter by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 1 contract
Samples: Stock Purchase Agreement (Endocardial Solutions Inc)
Registration Procedures and Expenses. The Company shall:
(a) subject to the timely receipt of necessary information requested in writing from the InvestorsPurchaser, within one hundred and twenty (120) calendar days after the Closing Date (such date, a “Filing Date”), prepare and file with the Securities and Exchange Commission a registration statement (the “SECRegistration Statement”), within thirty which shall be on Form S-3, relating to the sale of the Shares by the Purchaser on a continuous basis pursuant to Rule 415, in accordance with the Plan of Distribution attached hereto as Appendix II. The Purchaser agrees to furnish to the Company a completed questionnaire in the form attached as Appendix I hereto prior to the filing of the Registration Statement;
(30b) Calendar Days after if Form S-3 is not available for the Closing Date registration of the resale of the Shares, the Company shall (i) register the “Required Filing Date”)resale of the Shares on another appropriate form reasonably acceptable to the Purchaser and (ii) undertake to register the Shares on Form S-3 as soon as such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 to enable the resale of covering the Shares has been declared effective by the Investors from time to timeCommission;
(bc) (i) use its reasonable best efforts, subject to receipt of necessary information from the InvestorsPurchaser, to cause the Commission to declare the Registration Statement to become effective as soon as practicable, but in no event later than ninety within one hundred and eighty (90180) calendar days unless such after the Closing Date. If (A) the Registration statement Statement is reviewed not declared effective by the SEC, in which case Commission on or before the number of days shall be increased to one date that is two hundred twenty and seventy (120270) calendar days after the Closing Date or (B) after the “Required Effective Date”). If Commission declares the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required Effective Dateeffective, then the Company shall, immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, until the Registration Statement is filed ceases for any reason to be effective and available for more than an aggregate of thirty (30) days in any twelve (12) month period to the Purchaser for the resale of all of the Shares (subject to any applicable Permissible Suspension Period), including due to (1) a Suspension, (2) a suspension of effectiveness of the Registration Statement, or declared effective (3) the Company’s Common Stock being suspended, de-listed (including a failure to timely list the Shares on AMEX or another national securities exchange) or its failure to be quoted on AMEX or any national securities exchange while the Shares are still held by the SECPurchaser (excluding where such suspension, de-listing or failure referred to in this clause (3) did not directly arise out of or result from any action or inaction of the Company) (any such failure being referred to as an “Event”), then, as the sole monetary remedy for the possible damages to the Purchaser, the Company shall pay the Purchaser as liquidated damages an amount in cash equal to the aggregate purchase price of the Shares as reflected in SECTION 2 multiplied by .01 on each thirty (30) day anniversary of the Event date (or the ratable portion thereof for any period less than thirty (30) days) while such Event shall be continuing (such liquidated damages payable by the Company, a “Penalty Payment”). Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments of the foregoing liquidated damages payable exceed in the aggregate ten an amount equal to fifteen percent (1015%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is due;
(c) use its commercially reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus as may be necessary to keep the Registration Statement current and effective for a period ending on the earlier of (i) the date on which the Investor may sell Shares pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (ii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement 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 such number of copies (in paper or electronic version) aggregate purchase price of the Registration Statement and the Prospectus (including supplemental prospectuses)Shares. For purposes of clarification, 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;
(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 no Penalty Payment 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 1 and the registration of the Shares pursuant to the Registration Statement;
(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 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 a view to making available to the Investor the benefits of Rule 144 or other rule that may permit the Investor to sell Shares without registration, the Company 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, become payable until the earlier expiration of an initial thirty (A30) such date as all day period following the occurrence and continuation of an Event (the Investor’s Shares may be resold pursuant to Rule 144(k) or (B) such date as all of the Investor’s Shares shall have been sold; (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 a written statement that the Company has complied with the reporting requirements of the Securities Act and the Exchange Act, a copy (in paper or electronic version) 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 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 1 that the Investor shall furnish to the Company such information and representations regarding Investor, 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 and/or sale under Rule 144“Event Payment Date”). The Company understands that shall give the Investor disclaims being an underwriter, but acknowledges that a determination by Purchaser written notice within one (1) business day of the SEC that the Investor is deemed an underwriter shall not relieve the Company occurrence and termination of any obligations it has hereunder.Event;
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 Securities and Exchange Commission Except during a Suspension (“SEC”as defined below), within thirty (30) Calendar Days after the Closing Date (the “Required Filing Date”), a Registration Statement on Form S-3 to enable the resale of the Shares by the Investors from time to time;
(b) use its best effortsCompany will, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective Purchasers:
(i) as soon as practicable, but in no event later than ninety forty-five (45) days following the Closing Date (the “Filing Date”), use reasonable best efforts to prepare and file with the Commission a registration statement on Form S-3 (the “Registration Statement”) covering the resale of the Shares and the Warrant Shares of each Purchaser that has complied with Section 6.4, 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 exchange for or with respect to any of the foregoing, in each case held at the relevant time by a Purchaser (the “Registrable Securities”);
(ii) use reasonable best efforts to cause the Registration Statement, as amended, to become effective under the Securities Act as soon as practicable but in any event no later than 4:00 p.m. Eastern Time on the ninetieth (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (120) days day after the Closing Date (the “Required Effective Date”). If ;
(iii) use reasonable best efforts to cause the prospectus to be filed with the Commission pursuant to Rule 424(b) under the Securities Act as soon as practicable but in any event no later than 9:00 a.m. Eastern Time the next business day following the date such Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been is declared effective by the SEC on or before the Required Effective Date, then the Company shall, immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is dueCommission;
(civ) 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 (A) as may be necessary to keep the Registration Statement current and continuously effective for a period ending on until the earlier of (i) the date on which second anniversary of the Investor may sell Shares pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) Closing Date, or (ii) such time as all Shares and Warrant Shares purchased by such Investor in this Offering the Purchasers have been sold pursuant to a registration statement or Rule 144, and to notify each Investor promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective (B) as may be reasonably requested by the SECa Purchaser in order to incorporate information concerning such Purchaser or such Purchaser’s intended method of distribution;
(dv) so long as the Registration Statement is effective covering the resale of Registrable Securities owned by the Purchasers, furnish to each Purchaser with respect to the Investor Registrable Securities registered under the Registration Statement (and to each underwriter, if any, of such Registrable Securities) such reasonable number of copies (in paper or electronic version) of the Registration Statement prospectuses and the Prospectus (including supplemental prospectuses), such other documents as the Investor such Purchaser may reasonably request, request in order to facilitate the public sale or other disposition of all or any of the Shares Registrable Securities by the Investorsuch Purchaser;
(evi) use commercially reasonable efforts to file documents required of the Company for normal blue sky Blue Sky clearance in the States of New York and Wisconsin and any other states specified in writing by the InvestorPurchasers; provided, however, that the Company shall not be required to qualify to do business or consent to service of process generally in any jurisdiction in which it the Company is not now so qualified or has not so consentedqualified;
(fvii) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph paragraphs (ai) through (evi) of this Section 1 6.1 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 Purchasers or underwriting discounts, brokerage fees and commissions incurred by the Purchasers, if any, in connection with an underwritten offering of the Registrable Securities;
(gviii) 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 it will promptly use its all commercially reasonable efforts to prevent the issuance of any stop order or other order suspending the effectiveness of such Registration Statement and, if such an order is issued, to obtain its the withdrawal thereof at the earliest possible moment time and to notify each Purchaser of the issuance of such order and the resolution thereof;
(ix) furnish to each Purchaser, two (2) business days after the date that such Registration Statement becomes effective, (x) a letter, dated such date, of outside counsel representing the Company (and reasonably acceptable to such Purchaser) addressed to such Purchaser, confirming the effectiveness of such Registration Statement and, to the knowledge of such counsel, the absence of any stop order, and (y) in the case of an underwriting, an opinion addressed to such Purchaser, dated such date, of such outside counsel, in such form and substance as is required to be given to the underwriters;
(x) provide to each Purchaser and its representatives, if requested, the opportunity to conduct a reasonable inquiry of the Company’s financial and other records during normal business hours and make available its officers, directors and employees for questions regarding information which such stop Purchaser may reasonably request in order should to fulfill any due diligence obligation on its part, provided, that in the case of this clause (x), the Company shall not be issuedrequired to provide, and shall not provide, any Purchaser with material, non-public information unless such Purchaser agrees to receive such information and enters into a written confidentiality agreement with the Company; and
(hxi) with a view to making available not less than three trading days prior to the Investor filing of a Registration Statement and not less than two trading days prior to the benefits filing of Rule 144 any related Prospectus or other rule any amendment or supplement thereto (including any document that may permit would be incorporated or deemed to be incorporated therein by reference) or, in the Investor to sell Shares without registration, case of comments made by the Company 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 staff of the Investor’s Shares may be resold pursuant to Rule 144(k) or (B) such date as all of the Investor’s Shares shall have been sold; (ii) file with the SEC in a timely manner all reports Commission and other documents required of the Company under the Securities Act and under the Exchange Act; and (iii) furnish to the Investor upon request a written statement that the Company has complied with the reporting requirements of the Securities Act and the Exchange Act, a copy (in paper or electronic version) of the Company’s most recent Annual Report on Form 10-K responses thereto, within a reasonable period of time following the receipt thereof by the Company, furnish to each Purchaser copies of all such documents proposed to be filed or Quarterly Report on Form 10-Q, copies of such correspondence from and (C) such other information as may be reasonably requested 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 1 that the Investor shall furnish Commission relating to the Company such information and representations regarding InvestorRegistration Statement, as the Shares case may be, which documents (other than those incorporated or deemed to be sold incorporated by Investor, and reference) will be subject to the intended method of disposition review of such securities as shall be required to effect the registration of the Shares and/or sale under Rule 144Purchasers. The Company understands shall reflect in each such document when so filed with the Commission such comments relating to such Purchaser as such Purchaser may reasonably propose; provided, however, that the Investor disclaims being an underwriter, but acknowledges that a determination such comments from such Purchaser must be received by the SEC that Company no later than one trading day prior to the Investor is deemed an underwriter shall not relieve the Company filing of any obligations it has hereunder.such document with the
Appears in 1 contract
Samples: Securities Purchase Agreement (North American Scientific Inc)
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of necessary information from the Investors, prepare and file with the Securities and Exchange Commission (“SEC”), within thirty fifteen (3015) Calendar Days business days after the Closing Date Date, a registration statement on Form S-3 (the “Required Filing DateRegistration Statement”), a Registration Statement on Form S-3 ) to enable the resale of the Shares by the Investors from time to timetime through the automated quotation system of the Nasdaq Stock Market or in privately-negotiated transactions;
(b) use its 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 ninety sixty (9060) days unless such after the Registration statement Statement is reviewed filed by the SEC, in which case Company. If the number of days shall be increased to one hundred twenty (120) Registration Statement has not been declared effective by the SEC on or before the date that is 120 days after the Closing Date (the “Required Effective Date”). If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required Effective Date, then the Company shall, immediately following on the Required Filing Date (if not then so filed) 121st day and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as partial compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) 1% of the Purchase Price purchase price paid for the Shares purchased by the Investor, Investor and not previously sold by the Investor (but in no event to exceed 5% in the aggregate) until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all The Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis during each 30 day period and will be paid to the Investor by wire transfer or check within five (5) Business Days business days after the earlier of (i) the end of each 30 day period following the Required Effective Date or (ii) the effective date that each payment is dueof the Registration Statement;
(c) use its commercially 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 ending on not exceeding, with respect to 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 pursuant to paragraph (kthen held by the Investor without restriction by the volume limitations of Rule 144(e) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (iiiii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement or Rule 144statement, 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 (in paper or electronic version) of the Registration Statement and the Prospectus Statement, Prospectuses (including supplemental prospectuses), ) and preliminary versions of the Prospectus filed with the Securities Exchange Commission (“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 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 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 1 6.1 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 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 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 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 soldresold; (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 request, as long as the Investor owns any Shares, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) 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 1 6.1 that the Investor shall furnish to the Company such information and representations regarding Investoritself, 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 and/or sale under Rule 144Shares. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination the Investor being deemed an underwriter by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of necessary information from written confirmation by the InvestorsInvestor of the number of shares of the Company’s Common Stock owned by the Investor other than the Shares and a description of any material relationship, or confirmation of the absence of such material relationship, of the type described in Item 507 of Regulation S-K under the Securities Act, prepare and file with the Securities and Exchange Commission (“SEC”)SEC on or before July 8, within thirty (30) Calendar Days after 2002, a registration statement on Form S-3 or other form of registration statement which the Closing Date Company is eligible to use (the “Required Filing DateRegistration Statement”), a Registration Statement on Form S-3 ) to enable the resale of the Shares by the Investors Investor from time to timetime through the automated quotation system of the Nasdaq National Market or in privately–negotiated transactions;
(b) use its best efforts, subject to receipt confirmation of necessary the information from the InvestorsInvestor described in Section 8.1(a) above, to cause as well as the provision by the Investor of any other information requested by the SEC in connection with any review of the Registration Statement to become effective as soon as practicable, but in no event later than ninety (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (120i) days after the Closing Date (the “Required Effective Date”). If have the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been be declared effective by the SEC on no later than August 30, 2002 (or before October 30, 2002 in the Required Effective Date, then event the Company shall, immediately following SEC reviews the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effectiveRegistration Statement), and on each 30th day anniversary thereafter(ii) subject to Section 8.2, make a payment to maintain the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half effectiveness of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is due;
(c) use its commercially reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus as may be necessary to keep the Registration Statement current and effective for a period ending on the earlier of (i) the date on which the Investor may sell Shares pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (ii) until such time as all the Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement or may be sold pursuant to Rule 144, and to notify each Investor promptly upon 144(k) under the Securities Act;
(c) if the Registration Statement and each post-effective amendment thereto, being has not been declared effective by August 30, 2002 (or October 30, 2002 in the SECevent the SEC reviews the Registration Statement), the Company shall repurchase from the Investor, and the Investor shall sell to the Company, the Shares for the sum of $2,500,000, together with interest calculated at 3% above the US Treasury REPO rate from July 1, 2002;
(d) furnish to (i) ensure that, following the Investor such number of copies (in paper or electronic version) effectiveness of the Registration Statement and the Prospectus (including supplemental prospectuses)Statement, as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares sold by the InvestorInvestor pursuant to the Registration Statement shall be transferred as unrestricted Common Stock in the name of the purchaser within five (5) business days of notification to the Company by the Investor of any such sale, as set forth in Section 8.2(e), and (ii) indemnify the Investor in full against any and all losses arising from the failure of the Shares to be transferred as unrestricted Common Stock in the name of the purchaser within five (5) business days of notification to the Company by the Investor of any such sale provided that the Investor shall instruct its broker to follow normal business practices (which may include borrowing the Company’s Common Stock) to mitigate any such losses;
(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 1 and the registration of the Shares pursuant to the Registration Statement;
(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 or threat of any proceeding for that purpose; and 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;
(hf) with a view to making available to the Investor the benefits of Rule 144 or other rule ensure that may permit the Investor to sell Shares without registration, the Company agrees to use its commercially reasonable efforts to: (i) make the Registration Statement and keep public information availableany amendment thereto and any prospectus forming part thereof (as amended or supplemented, as those terms are understood including post-effective amendments thereto, and defined all material incorporated or deemed incorporated by reference therein, a “Prospectus”) complies 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 (B) such date as all of the Investor’s Shares shall have been sold; (ii) file material respects 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 a written statement that the Company has complied with the reporting requirements of the Securities Act and the Exchange Actrules and regulations thereunder, (ii) the Registration Statement and any amendment thereto does not, when it becomes effective, contain an 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 and (in paper or electronic versioniii) except as otherwise permitted by the terms of this Section 8, the Prospectus forming part of the Company’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-QRegistration Statement, and any amendment or supplement to such Prospectus, does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(Cg) such other information advise the Investor in writing when the Registration Statement and any amendment thereto has been filed with the SEC and when the Registration Statement or any post-effective amendment thereto has become effective;
(h) except as may be reasonably requested that permits set forth in Section 8.5 hereof, bear all expenses incurred in connection with the selling performance of any such Shares without registrationits obligations under this Section 8. It shall be a condition precedent Notwithstanding the foregoing or anything in this Agreement to the obligations of the Company to take any action pursuant to this Section 1 that contrary, the Investor shall furnish bear all of its expenses in connection with its purchase and any subsequent sale of the Shares; and
(i) notwithstanding anything in this Agreement to the Company such information and representations regarding Investorcontrary, the Shares to be sold by Investor, deadlines for filing and effectiveness of the intended method of disposition of such securities as Registration Statement contained in Sections 8.1(a)-(c) hereof shall be required extended for a reasonable amount of additional time if necessary (i) to effect the any permitted transfer of Shares and registration of the Shares and/or sale under Rule 144. The Company understands that rights by the Investor disclaims being to an underwriteraffiliate and (ii) to revise or amend the Registration Statement or supplement the accompanying Prospectus accordingly (which revisions, but acknowledges that a determination amendments or supplements shall be subject to receipt by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.written confirmation of information regarding such affiliate transferee of the type described in Section 8.1(a) hereof),
Appears in 1 contract
Samples: Stock Purchase Agreement (Tivo Inc)
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of necessary information from the Investors, prepare and file with the Securities and Exchange Commission (“SEC”), within thirty (30) Calendar Days as soon as practicable, but in no event later than 30 business days after the Closing Date Date, a registration statement on Form S-3 (the “Required Filing DateRegistration Statement”), a Registration Statement on Form S-3 ) to enable the resale of the Shares and Warrant Shares by the Investors from time to timetime through the automated quotation system of the Nasdaq Stock Market or in privately-negotiated transactions;
(b) use its best efforts, subject to receipt of necessary the information required from the InvestorsInvestors pursuant to Section 6(g) below, to cause the Registration Statement to become effective as soon as practicable, but in no event later than ninety (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (120) 120 days after the Closing Date (Registration Statement is filed by the “Required Effective Date”)Company. If the Registration Statement (i) has not been (1) filed by the Required Filing Date or 30th business day following the Closing Date, (ii2) has not been declared effective by the SEC on or before the Required Effective earlier of (i) the date that is 90 days after the Closing Date, then and (ii) the fifth business day following the date on which 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 or (3) is suspended after the effective date for more than 10 consecutive days or 15 non-consecutive days in the aggregate during any 12 month period (each such date, an Event Date), the Company shall, immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day monthly anniversary thereafterof an Event Date, make a payment pay to the Investor as compensation for such delay (the “Late Registration Payments”) an amount a cash penalty equal to one half of one 2 percent (0.5%) of the Purchase Price paid for the Shares shares purchased by the InvestorInvestor (pro-rated on a daily basis for any partial periods), exclusive of any Warrant Shares, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding SEC (rounded up to the foregoing, in no event nearest dollar after aggregating all Shares held by the Investor) (such amounts shall accrue interest at the total rate of all Late Registration Payments exceed in the aggregate ten percent (10%) of 18% per annum for any periods after such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date monthly anniversary that each payment is duedamages are unpaid);
(c) use its commercially 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 ending on not exceeding, with respect to each Investor’s Shares and Warrant Shares purchased hereunder, the earlier of (i1) the date on which the Investor may sell all Shares and Warrant Shares then held by the Investor without restriction by volume limitations pursuant to paragraph (kRule 144(k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (ii2) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement or Rule 144, and to notify each Investor promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective by the SECstatement;
(d) furnish to the Investor with respect to the Shares and Warrant Shares registered for resale under the Registration Statement such number of copies (in paper or electronic version) of the Registration Statement and the Prospectus Statement, Prospectuses (including supplemental prospectuses), ) and preliminary versions of the Prospectus filed with the Securities and Exchange Commission (“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 or Warrant Shares 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 Company, if any, for normal blue sky clearance in (i) in all U.S. jurisdictions in which any of the Shares or Warrant Shares are originally sold, and (ii) in states specified in writing by the Investor; , provided, however, that that, as to clause (ii) 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 1 6.1 and the registration of the resale of the Shares or Warrant Shares pursuant to the Registration Statement;; and
(g) advise the InvestorsInvestor, 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 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
(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 or Warrant Shares 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 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 soldresold; (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 request, as long as the Investor owns any Shares, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) 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 1 6.1 that the Investor shall furnish to the Company such information its then current beneficial ownership and representations regarding Investor, the name of the individual having voting or dispositive control over the Shares or Warrant Shares 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 resale of the Shares and/or sale under Rule 144. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunderand Warrant Shares.
Appears in 1 contract
Samples: Stock and Warrant Purchase Agreement (Act Teleconferencing Inc)
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of necessary information from the Investors, prepare and file with the Securities and Exchange Commission SEC, as soon as practicable, but in no event later than five (“SEC”), within thirty (305) Calendar Days business days after the Closing Date (the “Required Filing 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 timetime through the automated quotation system of the Nasdaq Stock Market or in privately-negotiated transactions;
(b) use its 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 ninety sixty (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (12060) days after the Closing Date (Registration Statement is filed by the “Required Effective Date”)Company. If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required Effective date that is 90 days after the Closing Date, then the Company shall, immediately following on the Required Filing 91st day after the Closing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment issue to the Investor as compensation .01 additional shares of Common Stock (which shall be deemed to be Shares) for such delay (every Share purchased in the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, Offering until the Registration Statement is filed or declared effective by the SEC. Notwithstanding SEC (rounded up to the foregoing, in no event shall nearest Share after aggregating all Shares held by the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is dueInvestor);
(c) use its commercially 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 ending on not exceeding, with respect to 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 pursuant to paragraph (kthen held by the Investor without restriction by the volume limitations of Rule 144(e) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (iiiii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement or Rule 144statement, 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 (in paper or electronic version) of the Registration Statement and the Prospectus Statement, Prospectuses (including supplemental prospectuses), ) and preliminary versions of the Prospectus filed with the Securities Exchange Commission ("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 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 all states specified in writing by the Investorrequiring blue sky clearance; 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 1 6.1 (including reasonable fees and expenses of one counsel for Investors) 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 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 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 '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 's Shares shall have been soldresold; (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 request, as long as the Investor owns any Shares, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) 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 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 1 6.1 that the Investor shall furnish to the Company such information and representations regarding Investoritself, 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 and/or sale under Rule 144Shares. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination the Investor being deemed an underwriter by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 1 contract
Samples: Stock Purchase Agreement (Endocardial Solutions Inc)
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of necessary information from the InvestorsPurchaser, as promptly as practicable, but in no event later than fifteen days after the Closing Date (such date, a “Filing Date”) prepare and file with the Securities and Exchange Commission (“SEC”)the Registration Statement, within thirty (30) Calendar Days after the Closing Date (the “Required Filing Date”), a Registration Statement which shall be on Form S-3 S-3, relating to enable the resale sale of the Shares and the Warrant Shares by the Investors from time to timePurchaser and the Other Purchasers in accordance with the Plan of Distribution attached hereto as Appendix IV;
(b) use its best commercially reasonable efforts, subject to receipt of necessary information from the InvestorsPurchaser, to cause the Commission to declare the Registration Statement to become effective as soon as practicable, but in no event later than ninety within sixty (9060) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (120) calendar days after the Closing Filing Date (such date, the “Required Effective Date”); provided, however, that if the Company filed the Registration Statement by the Filing Date and the Registration Statement receives Commission review, then the Required Effective Date will be the one hundred fifth (105th) calendar day after the Filing Date. If the Registration Statement is (iA) has not been filed by with the Required Commission on or before the Filing Date or (iiB) has not been declared effective by the SEC Commission on or before the Required Effective Date, then the Company shall, immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is due;
(c) use its commercially reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus as may be necessary to keep the Registration Statement current and effective for a period ending on the earlier of (i) five Business Days after the date Commission has advised the Company that no review will be made of the Registration Statement or that the Commission has no further comments on which the Investor may sell Shares pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (ii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement or Rule 144, and to notify each Investor promptly upon the Registration Statement and (ii) the Required Effective Date, or (iii) following the initial effectiveness of the Registration Statement, the Registration Statement becomes unavailable for sales thereunder other than as a result of a Suspension of less than 45 consecutive days or an aggregate of 70 days in any 365-day period (each, an “Event”), then, as relief for the damages to the Purchaser by reason of any such delay in or reduction of its ability to sell the Shares or Warrant Shares (which remedy shall not be exclusive of any other non-monetary remedies available at law or in equity), the Company shall pay to the Purchaser, for every thirty (30) days that such Event occurs and is continuing (or pro rata for any period of less than thirty (30) days), an amount in cash equal to: (i) the aggregate purchase price of such Purchaser’s Securities as reflected in SECTION 2 multiplied by (ii) 0.01. The foregoing liquidated damages shall constitute the sole monetary remedy available to the Purchaser upon the occurrence of an Event.
(c) provide copies to and permit Xxxxxxxxxx Xxxxxxx PC to review each post-effective amendment thereto, being declared effective by Registration Statement and all amendments and supplements thereto no fewer than three (3) days prior to their filing with the SECCommission and not file any document to which such counsel reasonably objects;
(d) furnish to the Investor such number Purchaser and its legal counsel promptly after the same is prepared and publicly distributed, filed with the Commission, or received by the Company (but not later than two (2) Business Days after the filing date, receipt date or sending date, as the case may be) one (1) copy of copies (in paper or electronic version) of the any Registration Statement and any amendment thereto, each preliminary prospectus and Prospectus and each amendment or supplement thereto, and each letter written by or on behalf of the Prospectus (including supplemental prospectuses)Company to the Commission or the staff of the Commission, as and each item of correspondence from the Investor may reasonably requestCommission or the staff of the Commission, in order each case relating to facilitate such Registration Statement (other than any portion of any thereof which contains information for which the public sale or other disposition of all or any of the Shares by the InvestorCompany has sought confidential treatment);
(e) file documents required prior to any public offering of the Company Shares and the Warrant Shares, use commercially reasonable efforts to register or qualify such Shares and Warrant Shares for normal offer and sale under the securities or blue sky clearance in states specified in writing laws of such jurisdictions requested by the InvestorPurchasers and do any and all other commercially reasonable acts or things necessary or advisable to enable the distribution in such jurisdictions of the Shares and the Warrant Shares; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (i) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this clause (e), (ii) subject itself to general taxation in any jurisdiction where it would not otherwise be so subject but for this clause (e), or (iii) file a general consent to service of process in any jurisdiction in which it is not now so qualified or has not so consentedsuch jurisdiction;
(f) bear all expenses (other than underwriting discounts use its commercially reasonable efforts to promptly prepare and commissions, if any) file with the Commission such amendments and supplements to the Registration Statement and the prospectus used in connection with therewith as may be necessary to keep the procedures in paragraph Registration Statement effective until the earlier of (ai) through (e) of this Section 1 the date on which the Shares and the Warrant Shares may be resold by the Purchasers without registration by reason of Rule 144(k) under the Securities Act; or (ii) such time as all Shares and Warrant Shares purchased by such Purchaser under this Agreement have been sold. 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 Shares or Warrant Shares pursuant to the Registration Statement;
(g) advise furnish to the InvestorsPurchaser with respect to the Shares and the Warrant Shares registered under the Registration Statement (and to each underwriter, promptly after it shall receive notice if any, of such Shares and Warrant Shares) such number of copies of prospectuses and such other documents as the Purchaser may reasonably request, fulfill in all respects the condition specified in Rule 172(c)(3) under the Securities Act and notify the Purchaser when the conditions specified in Rule 172(c)(1) or obtain knowledge Rule 172(c)(2) under the Securities Act are not satisfied;
(h) notify the Purchaser on the day that the Registration Statement or any post-effective amendment thereto is declared effective;
(i) notify the Purchaser, at any time when a prospectus relating to the Shares or the Warrant Shares is required to be delivered under the Securities Act, on the day of the happening of any event as a result of which the prospectus included in the Registration Statement contains an untrue statement of a material fact or omits any fact necessary to make the statements in the prospectus not misleading; and prepare a supplement or amendment to the prospectus so that, when delivered to purchasers of the Shares or the Warrant Shares, the prospectus, as supplemented or amended, does not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements in the prospectus not misleading, and notify the Purchaser on the day of the filing of such supplement or amendment;
(j) cause all such Shares and Warrant Shares to be quoted on the Nasdaq National Market and listed on any other exchange on which the Company’s shares of common stock are listed;
(k) upon execution of a nondisclosure agreement, in form reasonably satisfactory to the Company, by each person to whom information will be disclosed, make available for inspection by each Purchaser, any underwriter participating in any disposition pursuant to the Registration Statement and any attorney, accountant or other agent retained by any Purchaser or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, employees and independent accountants to supply all information reasonably requested by any Purchaser or any such underwriter, attorney, accountant or agent in connection with the Registration Statement;
(l) in the event of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement Statement, or of any order suspending or preventing the initiation use of any proceeding related prospectus or suspending the qualification of any securities included in the Registration Statement for that purpose; and it will promptly sale in any jurisdiction, notify each Purchaser on the day of such issuance, use its commercially reasonable best efforts to prevent the issuance of any stop order or promptly to obtain its the withdrawal at of such order, and notify each Purchaser on the earliest possible moment if day of such stop order should be issued; andwithdrawal;
(hm) file a Form D with a view to making available respect to the Investor the benefits of Rule 144 or other rule that may permit the Investor to sell Shares without registration, the Company agrees to use its commercially reasonable efforts to: (i) make Securities as required under Regulation D 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 (B) such date as all of the Investor’s Shares shall have been sold; (ii) file with the SEC in provide a timely manner all reports and other documents required of the Company under the Securities Act and under the Exchange Act; and (iii) furnish copy thereof to the Investor Purchaser promptly upon request by the Purchaser;
(n) issue a written statement that press release describing the Company has complied transactions contemplated by this Agreement on the Closing Date;
(o) bear all expenses in connection with the reporting requirements of the Securities Act and the Exchange Act, a copy (in paper or electronic version) of the Company’s most recent Annual Report on Form 10-K performance of or Quarterly Report on Form 10-Q, and compliance with paragraphs (Ca) such other information as may be reasonably requested that permits the selling through (n) 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 1 that the Investor shall furnish to the Company such information and representations regarding Investor, the Shares to be sold by Investor, SECTION 7.1 and the intended method of disposition of such securities as shall be required to effect the Company’s registration of the Shares and/or sale under Rule 144pursuant to the Registration Statement (other than fees and expenses, if any, of legal counsel (subject to Section 19 hereof) or other advisers to the Purchasers or underwriting discounts, brokerage fees and commissions incurred by the Purchasers, if any). The Company understands that the Investor Purchaser disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is Purchaser being deemed an underwriter shall not relieve the Company of any obligations it has hereunder. 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 and Warrant Shares pursuant to the Registration Statement.
Appears in 1 contract
Samples: Purchase Agreement (Metasolv Inc)
Registration Procedures and Expenses. The Company further covenants that it shall:
(a) subject to within 180 days after receipt of necessary information from any request in the Investorsform of Appendix III hereto, by Purchasers owning 66 2/3% of the Shares, prepare and file with the Securities and Exchange Commission (“SEC”), within thirty (30) Calendar Days after the Closing Date Registration Statement (the “Required Filing Date”), a "Registration Statement on Form S-3 Statement") relating to enable the resale sale of the Shares by the Investors Purchaser from time to timetime through the automated quotation system of The Nasdaq Small-Cap Market or The Nasdaq National Market, in the over-the-counter market, on the facilities of any national securities exchange on which the Company's common stock is then traded or in privately-negotiated transactions, PROVIDED HOWEVER, that the Company may postpone the filing of the Registration Statement for (a) up to 60 days if, in the good faith judgment of the Board of Directors of the Company, the filing of any registration statement during such 60-day period would adversely affect a material proposed or pending acquisition, merger or other extraordinary corporate event to which the Company is or reasonably expects to be a party, or (b) up to 60 days if the Company is not yet eligible to file a registration statement on Form S-3 but reasonably expects to become eligible to so file within such 60-day period.
(b) use its best efforts to cause the Shares to be quoted on the automated quotation system of The Nasdaq Small-Cap Market, The Nasdaq National Market or the facilities of any national securities exchange on which the Common Stock is then traded, as soon as practicable after request for registration of the Shares;
(bc) use its best efforts, subject to receipt of necessary information from the InvestorsPurchasers, to cause the Registration Statement Commission to become effective as soon as practicable, but in no event later than ninety (90) days unless such Registration statement is reviewed by notify the SEC, in which case Company of the number of days shall be increased Commission's willingness to one hundred twenty (120) days after the Closing Date (the “Required Effective Date”). If declare the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required Effective Date, then the Company shall, immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, until within 60 days after the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is dueCompany;
(cd) use its commercially 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 ending on the earlier of until (i) such shares are sold pursuant to the Registration Statement or (ii) the date on which the Investor Shares may sell Shares pursuant to paragraph (k) be resold by the Purchasers without registration, by reason of Rule 144 144(k) under the Securities Act or any successor other rule (“Rule 144”) or (ii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement or Rule 144, and to notify each Investor promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective by the SECof similar effect;
(de) 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 (in paper or electronic version) of the Registration Statement prospectuses and the Prospectus (including supplemental prospectuses), 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 InvestorPurchaser, PROVIDED, HOWEVER, that the obligation of the Company to deliver copies of prospectuses to the Purchaser shall be subject to the receipt by the Company of reasonable assurances from the Purchaser that the 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;
(ef) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor; providedPurchaser, howeverPROVIDED, 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) on or prior to the date on which the Registration Statement becomes effective (the "Effective Date"), cause the Accountants to deliver a comfort letter to the Purchasers with respect to the Registration Statement in a form reasonably satisfactory to the Placement Agent and counsel to the Placement Agent;
(h) on or prior to the Effective Date, cause Company Counsel to deliver its legal opinion addressed to Purchasers in a form reasonably satisfactory to the Placement Agent and counsel to the Placement Agent;
(i) on or prior to the Effective Date, deliver a certificate executed by the Chief Executive Officer and the Chief Financial or Accounting Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that the representations and warranties of the Company set forth in Section 4 hereof are true and correct with respect to the Registration Statement as of the Effective Date and that the Company has complied with all of the agreements and satisfied all of the conditions to be performed by it on or prior to the Effective Date; and
(j) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph (a) through (e) of this Section 1 7.1 and the registration of the Shares pursuant to the Registration Statement;
(g) advise , other than fees and expenses, if any, of counsel or other advisers to the InvestorsPurchaser or the Other Purchasers or underwriting discounts, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order 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 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 Other Purchasers, if such stop order should be issued; and
(h) with a view to making available to the Investor the benefits of Rule 144 or other rule that may permit the Investor to sell Shares without registration, the Company 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 be resold pursuant to Rule 144(k) or (B) such date as all of the Investor’s Shares shall have been sold; (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 a written statement that the Company has complied with the reporting requirements of the Securities Act and the Exchange Act, a copy (in paper or electronic version) 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 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 1 that the Investor shall furnish to the Company such information and representations regarding Investor, 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 and/or sale under Rule 144. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunderany.
Appears in 1 contract
Samples: Purchase Agreement (Cardiodynamics International Corp)
Registration Procedures and Expenses. i. The Company shall:
(a) subject to receipt of necessary information from the Investors, shall prepare and file with the Securities and Exchange Commission (“SEC”), within thirty (30) Calendar Days after as promptly as reasonably practicable following the Closing Date (the “Required Filing Date”), a Registration Statement on Form S-3 to enable the resale of the Shares by the Investors from time to time;
(b) use its 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 ninety 45 days following Closing, a registration statement on Form S-1 (90or any successor to Form S-1), covering the resale of the Registrable Securities (the “Registration Statement”) and as soon as reasonably practicable thereafter but in no event later than 180 days unless such following the filing of the Registration statement is reviewed Statement (210 days in the event of a full review of the Registration Statement by the SEC), to effect such registration and any related qualification or compliance with respect to all Registrable Securities held by the Investors. For purposes of this Agreement, the term “Registrable Securities” shall mean (i) the Note Shares; (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 which case the number of days shall be increased to one hundred twenty (120) days after the Closing Date (the “Required Effective Date”)exchange for or in replacement of, any Note Shares or Warrant Shares. If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the date that is 180 days after the filing date of the Registration Statement, or 210 days after the filing of the Registration Statement in the event of a full review of the Registration Statement by the SEC (the “Required Effective Date”), then the Company shall, on the business day immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor Purchasers as compensation partial liquidated damages for such delay (together, the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) 1% of the Purchase Price paid for the Shares purchased Securities then owned by the Investor, Purchasers until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis during each 30 day period and will be paid to Investor the Purchasers by wire transfer or check within five (5) Business Days business days after the date that each payment is due;
(c) use its commercially reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus as may be necessary to keep the Registration Statement current and effective for a period ending on the earlier of (i) the date on which end of each 30 day period following the Investor may sell Shares pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) Required Effective Date or (ii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement 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 such number of copies (in paper or electronic version) date of the Registration Statement and the Prospectus (including supplemental prospectuses), 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;
(e) file documents required of Statement. If the Company for normal blue sky clearance in states specified in writing by the Investor; provided, however, that the Company shall not be required fails to qualify to do business or consent to service of process in pay 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 1 and the registration of the Shares liquidated damages pursuant to this section in full within seven days after the Registration Statement;
(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 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 a view to making available to the Investor the benefits of Rule 144 or other rule that may permit the Investor to sell Shares without registrationdate payable, the Company agrees will pay interest thereon at a rate of 12% per annum (or such lesser maximum amount that is permitted to use its commercially reasonable efforts to: (ibe paid by applicable law) 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 (B) such date as all of the Investor’s Shares shall have been sold; (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 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 written statement that federal legal holiday in the Company has complied with the reporting requirements of the Securities Act and the Exchange Act, a copy (in paper or electronic version) 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 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 1 that the Investor shall furnish to the Company such information and representations regarding Investor, 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 and/or sale under Rule 144. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunderUnited States.
Appears in 1 contract
Samples: Secured Convertible Promissory Note Purchase Agreement (EVO Transportation & Energy Services, Inc.)
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of necessary information from the Investors, The Company shall prepare and file with the Securities and Exchange Commission (“SEC”), within thirty (30) Calendar Days after the Closing Date (the “Required Filing Date”), a Registration Statement on Form S-3 to enable the resale of the Shares by the Investors from time to time;
(b) use its best efforts, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective as soon promptly as practicablereasonably practicable following Closing, but in no event later than ninety 30 days following Closing, a registration statement on Form S-3 (90or any successor to Form S-3), covering the resale of the Registrable Securities (as defined below) (the “S-3 Registration Statement”) and as soon as reasonably practicable thereafter but in no event later than 90 days unless such following the filing of the S-3 Registration statement is reviewed Statement (120 days in the event of a full review of the S-3 Registration Statement by the SEC), in which case to effect such registration and any related qualification or compliance with respect to all Registrable Securities held by the number Purchasers. For purposes of days this Agreement, the term “Registrable Securities” shall be increased to one hundred twenty (120) days after the Closing Date (the “Required Effective Date”). If the Registration Statement mean (i) has not been filed by the Required Filing Date or Warrant; (ii) has not been declared effective by the SEC on or before the Required Effective Date, then Common Shares and Warrant Shares; and (iii) any Common Stock of the Company shallissued as (or issuable upon the conversion or exercise of any warrant, immediately following 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 Common Shares or Warrant Shares. In the Required Filing Date event that Form S-3 (if not then so filedor any successor form) and is or becomes unavailable to register the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment resale of the Registrable Securities at any time prior to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) expiration of the Purchase Price paid for Purchaser’s Registration Rights pursuant to Section 6.6, the Shares purchased by the Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event Company shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is due;
(c) use its commercially reasonable best efforts to prepare and file with the SEC such amendments and supplements to SEC, as promptly as reasonably practicable following the Registration Statement and the Prospectus as may be necessary to keep the Registration Statement current and effective for Closing but in no event later than 30 days following Closing, a period ending registration statement on the earlier of Form S-1 (i) the date on which the Investor may sell Shares pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule to Form S-1), covering the resale of the Registrable Securities (the “Rule 144S-1 Registration Statement” and collectively the S-3 Registration Statement, the “Registration Statement”) or (ii) such time and as all Shares purchased by such Investor soon as reasonably practicable thereafter but in this Offering have been sold pursuant to a registration statement or Rule 144, and to notify each Investor promptly upon no event later than 90 days following the filing of the S-1 Registration Statement and each post-effective amendment thereto, being declared effective (120 days in the event of a full review of the S-1 Registration Statement by the SEC;
(d) furnish to the Investor such number of copies (in paper or electronic version) of the Registration Statement and the Prospectus (including supplemental prospectuses), 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;
(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 1 and the registration of the Shares pursuant to the Registration Statement;
(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 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 a view to making available to the Investor the benefits of Rule 144 or other rule that may permit the Investor to sell Shares without registration, the Company 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 be resold pursuant to Rule 144(k) or (B) such date as all of the Investor’s Shares shall have been sold; (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 a written statement that the Company has complied with the reporting requirements of the Securities Act and the Exchange Act, a copy (in paper or electronic version) 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 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 1 that the Investor shall furnish to the Company such information and representations regarding Investor, the Shares to be sold by Investor, and the intended method of disposition of such securities as shall be required to effect the such registration of the Shares and/or sale under Rule 144. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is deemed an underwriter shall not relieve the Company of and any obligations it has hereunder.related qualification or compliance with respect
Appears in 1 contract
Samples: Common Stock and Warrant Purchase Agreement (Pw Eagle Inc)
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of necessary information from Except during a Suspension, the Investors, prepare and file with the Securities and Exchange Commission (“SEC”), within thirty (30) Calendar Days after the Closing Date (the “Required Filing Date”), a Registration Statement on Form S-3 to enable the resale of the Shares by the Investors from time to time;
(b) use its best effortsCompany will, subject to receipt of necessary information from the Investors, to cause the Registration Statement to become effective Purchasers:
(i) as soon as practicable, but in any event no event later than ninety 5:30 p.m., Eastern Time, on the 90th day after the Closing Date, to prepare and file with the Commission a registration statement on Form S-1 or other applicable form available to the Company (90the “Registration Statement”) days unless such covering the resale by each Purchaser of the Shares purchased by each Purchaser hereunder that has complied with Section 8.5 (the “Registrable Securities”).
(ii) cause (A) the Registration statement Statement, as may be amended from time to time, to become effective under the Securities Act as soon as practicable after the Registration Statement is filed by the Company, but in any event no later than 5:30 p.m., Eastern Time, on the 90th day after the Closing Date, or if the Registration Statement is reviewed by the SECCommission, in which case on the number of days shall be increased to one hundred twenty (120) days 120th day after the Closing Date (the its “Required Effective Date”). If ;
(iii) cause any prospectus used in connection with the Registration Statement (ia “Prospectus”) has to be filed with the Commission pursuant to Rule 424(b) under the Securities Act as soon as practicable but in any event no later than 9:00 a.m., Eastern Time, on the next day that is not been filed by a weekend or holiday and the Required Filing Date or NASDAQ Global Market is not closed (ii“Trading Day”) has not been following the date the Registration Statement is declared effective by the SEC on or before the Required Effective Date, then the Company shall, immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is dueCommission;
(civ) 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 any Prospectus used in connection therewith as may be necessary to keep the Registration Statement current and continuously effective for a period ending on until the earlier earliest of (i) the date on which the Investor may sell Shares pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (ii1) such time as all Shares purchased by such Investor in this Offering Registrable Securities have been sold pursuant to a registration statement or Rule 144, such Registration Statement and to notify each Investor promptly upon (2) the first anniversary of the Closing Date;
(v) so long as the Registration Statement and each post-is effective amendment thereto, being declared effective covering the resale of Registrable Securities owned by the SEC;
(d) Purchasers, furnish to each Purchaser with respect to the Investor Registrable Securities registered under such Registration Statement such reasonable number of copies (in paper or electronic version) of the Registration Statement Prospectuses and the Prospectus (including supplemental prospectuses), such other documents as the Investor such Purchaser may reasonably request, request in order to facilitate the public sale or other disposition of all or any of the Shares Registrable Securities by the Investorsuch Purchaser;
(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;
(fvi) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph paragraphs (ai) through (ev) of this Section 1 8.1(a) 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 Purchasers or brokerage fees and commissions incurred by the Purchasers; and
(gvii) 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 it will promptly use its commercially reasonable efforts to prevent the issuance of any stop order or other order suspending the effectiveness of the Registration Statement and, if such an order is issued, to obtain its the withdrawal thereof at the earliest possible moment if time and to notify each Purchaser of the issuance of such stop order should be issued; andand the resolution thereof.
(hb) The Company shall be permitted to suspend or delay for one or more periods (each such period, a “Suspension”) the actions required under Sections 8.1(a) and the use of a Prospectus forming a part of a Registration Statement in the event that (i) the Company is engaged in any activity or transaction or preparations or negotiations for any activity or transaction that the Company desires to keep confidential for business reasons, if the Company determines in good faith that the public disclosure requirements imposed on the Company under the Securities Act in connection with the Registration Statement would require disclosure of such activity, transaction, preparations or negotiations, (ii) any financial statements or other information required to be included or incorporated by reference in the Registration Statement are not available, or (iii) the Company has timely filed a post-effective amendment to the Registration Statement to satisfy its undertakings under Item 512 of Regulation S-K promulgated under the Securities Act or to include any prospectus required by Section 10(a)(3) of the Securities Act and such amendment shall have not yet been declared effective by the Commission. The Company agrees to file such amendment, supplement or report or otherwise disclose such additional information as soon as practicable following such notice of such Suspension. Notwithstanding the foregoing, the Company agrees that no Suspension shall be for a period of longer than 45 days and no Suspension or Suspensions shall be for an aggregate in any 365-day period of longer than 90 days; provided that any Suspension of up to 20 days pursuant to clause (iii) of this Section 8.1(b) shall not count toward the calculation of such periods.
(c) With a view to making available to the Investor Purchasers the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the Commission 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: (iA) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A1) such date as all of the Investor’s Shares Purchasers’ Registrable Securities may be resold without volume or manner of sale limitations pursuant to Rule 144(k144(b) or any other rule of similar effect or (B2) such date as all of the Investor’s Shares Purchasers’ Registrable Securities shall have been soldresold; (iiB) file with the SEC Commission in a timely manner all reports and other documents required of the Company under the Securities Act and under the Exchange Act; and (iiiC) furnish to the Investor Purchaser upon request request, as long as the Purchaser owns any Registrable Securities, (1) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (2) a copy (in paper or electronic version) of the Company’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, if available, except to the extent that such documents are available from the Commission on its XXXXX website, and (C3) such other information as may be reasonably requested (including but not limited to, opinion of counsel) in order to avail the Purchaser of any rule or regulation of the Commission 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 the Investor shall furnish to the Company such information and representations regarding Investor, 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 and/or sale under Rule 144. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 1 contract
Samples: Share Purchase Agreement (Aratana Therapeutics, Inc.)
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of necessary information from the Investors, prepare and file with the Securities and Exchange Commission (“SEC”), within as soon as practicable, but in no event later than thirty (30) Calendar Days business days after the Closing Date (the “Required Filing Date”), a Registration Statement registration statement on Form S-3 or, if Form S-3 eligibility has not been restored pursuant to Section 3.11 hereof, on Form S-1(the "REGISTRATION STATEMENT") to enable the resale of the Shares by the Investors from time to timetime through the automated quotation system of the Nasdaq Stock Market or in privately-negotiated transactions;
(b) use its 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 ninety (90) days unless such after the Registration statement Statement is reviewed filed by the SEC, in which case the number of days shall be increased to one hundred twenty (120) days after the Closing Date (the “Required Effective Date”)Company. If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required Effective date that is 90 days after the Closing Date, then the Company shall, immediately following on the Required Filing 91st day after the Closing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment issue to the Investor as compensation .01 additional shares of Common Stock (which shall be deemed to be Shares), for such delay (every Share purchased in the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, Offering until the Registration Statement is filed or declared effective by the SEC. Notwithstanding SEC (rounded up to the foregoing, in no event shall nearest Share after aggregating all Shares held by the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is dueInvestor);
(c) use its commercially 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 ending on not exceeding, with respect to each Investor's Shares purchased hereunder, the earlier earliest 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 volume limitations pursuant to paragraph (kRule 144(k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (iiiii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement or Rule 144, and to notify each Investor promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective by the SECstatement;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies (in paper or electronic version) of the Registration Statement and the Prospectus Statement, Prospectuses (including supplemental prospectuses), ) and preliminary versions of the Prospectus filed with the Securities and Exchange Commission ("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 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 Company, if any, for normal blue sky clearance in (i) in all U.S. jurisdictions in which any of the Shares are originally sold, and (ii) in states specified in writing by the Investor; , provided, however, that that, as to clause (ii) 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 1 6.1 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 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
(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 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 '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 's Shares shall have been soldresold; (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 request, as long as the Investor owns any Shares, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) 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 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 1 6.1 that the Investor shall furnish to the Company such information and representations regarding Investoritself, the Shares 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 and/or sale under Rule 144Shares. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination the Investor being deemed an underwriter by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 1 contract
Samples: Stock Purchase Agreement (Act Teleconferencing Inc)
Registration Procedures and Expenses. The Company shall:
(aA) subject to receipt of necessary information from the Investors, prepare and file with the Securities and Exchange Commission SEC, as soon as practicable, but in no event later than five (“SEC”), within thirty (305) Calendar Days business days after the Closing Date (the “Required Filing 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 timetime through the automated quotation system of the Nasdaq Stock Market or in privately-negotiated transactions;
(bB) use its best reasonable 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 ninety sixty (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (12060) days after the Closing Date (Registration Statement is filed by the “Required Effective Date”)Company. If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required Effective date that is 90 days after the Closing Date, then the Company shall, immediately following on the Required Filing 91st day after the Closing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th 45th day anniversary thereafter, make a payment issue to the Investor as compensation .01 additional shares of Common Stock (which shall be deemed to be Shares), up to a maximum of .03 additional shares of Common Stock, for such delay (every Share purchased in the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, Offering until the Registration Statement is filed or declared effective by the SEC. Notwithstanding SEC (rounded up to the foregoing, in no event shall nearest Share after aggregating all Shares held by the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is dueInvestor);
(cC) use its commercially 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 ending on not exceeding, with respect to 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 pursuant to paragraph (kthen held by the Investor without restriction by the volume limitations of Rule 144(e) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (iiiii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement or Rule 144, and to notify each Investor promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective by the SECstatement;
(dD) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies (in paper or electronic version) of the Registration Statement and the Prospectus Statement, Prospectuses (including supplemental prospectuses), ) and preliminary versions of the Prospectus filed with the Securities Exchange Commission ("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 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;
(eE) file documents required of the Company for normal blue sky clearance in states reasonably specified in writing by the Investor; Investor 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;
(fF) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph (a) through (e) of this Section 1 6.1 and the registration of the Shares pursuant to the Registration Statement;; and
(gG) 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 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 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 '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 's Shares shall have been soldresold; (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 request, as long as the Investor owns any Shares, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) 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 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 1 that the Investor shall furnish to the Company such information and representations regarding Investor, 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 and/or sale under Rule 144. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of necessary information from as soon as reasonably practicable, but in no event later than five (5) days following the InvestorsSecond Closing Date, or if the Second Closing shall not have taken place, within 45 days after the Initial Closing Date, then in no event later than 45 days after the Initial Closing Date (such date, “Filing Date”), prepare and file with the Securities and Exchange Commission (“SEC”), within thirty (30) Calendar Days after the Closing Date (the “Required Filing Date”), a Registration Statement on Form S-3 relating to enable the resale sale of the Shares Securities by the Investors Purchaser, as well as any shares of Common Stock issued or issuable upon any stock split, dividend or other distribution, recapitalization or other similar event with respect to the Securities (such shares together with the Securities are collectively referred to as, the “Shares”) from time to timetime on 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 (the parties acknowledge that the Company may choose to include the Shares on a registration statement with other similar securities issued by the Company);
(b) use its best efforts, subject to receipt of necessary information from the InvestorsPurchaser, to cause the Commission to declare the Registration Statement to become effective as soon as practicable, but in no event later than ninety (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (120) within 45 days after the Closing Filing Date (such date, the “Required Effective Date”). If However, so long as the Company filed the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required Effective Date, if the Registration Statement receives Commission review, then the Company shall, immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five the seventy-fifth (575th) Business Days calendar day after the date that each payment is dueFiling 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 keep the Registration Statement current and effective for a period ending on until the earlier earliest of (i) two years after the effective date on which of the Investor may sell Shares pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) Registration Statement, or (ii) 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 statement or Rule 144144(k) under the Securities Act of 1933, and to notify each Investor promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective by the SECas amended;
(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 (in paper or electronic version) of the Registration Statement prospectuses and the Prospectus (including supplemental prospectuses), 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 InvestorPurchaser;
(e) file documents required of the Company for normal blue sky Blue Sky clearance in 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;
(f) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph paragraphs (a) through (e) of this Section 1 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 underwriting discounts, brokerage fees and commissions incurred by the Purchaser, if any;
(g) advise file a Form D with respect to the Investors, Securities as required under Regulation D and to provide a copy thereof to the Purchaser promptly after it shall receive filing;
(h) issue a press release describing the transactions contemplated by this Agreement on each of the Closing Dates;
(i) make available, while the 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; and
(j) promptly provide to the Purchaser notice of (i) effectiveness of the Registration Statement, (ii) any Suspension, or obtain knowledge of (iii) the issuance of any stop order by the SEC delaying or suspending the effectiveness of with respect to the Registration Statement or of the initiation of any proceeding for that purpose; and 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 a view to making available to the Investor the benefits of Rule 144 or other rule that may permit the Investor to sell Shares without registration, the Company 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 be resold pursuant to Rule 144(k) or (B) such date as all of the Investor’s Shares shall have been sold; (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 a written statement that the Company has complied with the reporting requirements of the Securities Act and the Exchange Act, a copy (in paper or electronic version) 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 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 1 that the Investor shall furnish to the Company such information and representations regarding Investor, 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 and/or sale under Rule 144Statement. The Company understands that the Investor Purchaser disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is Purchaser being deemed an underwriter shall not relieve the Company of any obligations it has hereunder. A questionnaire related to the Registration Statement to be completed by the Purchaser is attached hereto as Appendix II.
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 Securities and Exchange Commission (“SEC”), within as soon as practicable, but in no event later than thirty (30) Calendar Days days after the Closing Date (the “Required Filing Date”), a Registration Statement 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 timetime through the automated quotation system of the Nasdaq Stock Market or in privately-negotiated transactions;
(b) use its best reasonable 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 ninety (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (120) days after the Closing Date (the “Required Effective Date”). If the Registration Statement (i) has not been is filed by the Required Filing Company. Notwithstanding the foregoing, if the Registration Statement is not declared effective by July 15, 2000 (the "Final Effectiveness Date") and does not remain effective for thirty (30) continuous days thereafter, the Investor shall be entitled to a stock dividend in the amount of two percent (2%) of the Shares purchased by such Investor hereunder, provided that an additional stock dividend in the amount of one and one-half percent (1.5%) of the Shares purchased hereunder shall be made at each of the first two three-month anniversaries of the Final Effective Date or (ii) if the Registration Statement has not been declared effective by and remained effective for thirty (30) continuous days from the SEC on or before the Required Effective Date, then the Company shall, immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) date of the Purchase Price paid for the Shares purchased by the Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event first effectiveness as of such three month anniversaries; provided further that any such stock dividend shall the total of all Late Registration Payments not exceed in the aggregate ten five percent (105%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is due;).
(c) use its commercially 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 ending on not exceeding, with respect to each Investor's Shares purchased hereunder, the earlier earliest of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares pursuant to paragraph (kthen held by the Investor without restriction by the volume limitations of Rule 144(e) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (iiiii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement 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;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 (in paper or electronic version) of the Registration Statement Statement, Prospectuses and Preliminary Prospectuses in conformity with the Prospectus (including supplemental prospectuses), 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 (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph (a) through (e) of this Section 1 7.1 and the registration of the Shares pursuant to the Registration Statement;, other than fees and expenses, if any, of counsel or other advisors to the Investors, provided, however, that the Company shall pay the reasonable fees and expenses of one firm of attorneys for the Investors as a group, or underwriting discounts, brokerage fees and commissions incurred by the Investors, 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 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 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 agrees to use its commercially reasonable efforts to: covenants and
(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 '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 's Shares shall have been soldresold; (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 request, as long as the Investor owns any Shares, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) 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 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 1 7.1 that the Investor shall furnish to the Company such information and representations regarding Investoritself, 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 and/or sale under Rule 144Shares. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination the Investor being deemed an underwriter by the SEC that the Investor is deemed an underwriter 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) 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) subject to receipt of necessary information from the InvestorsInvestors reasonably requested by the Company, prepare and file with the Securities and Exchange Commission (“SEC”), within thirty ten (3010) Calendar Days business days after the Closing Date Date, a registration statement on Form S-3 (the “Required Filing DateRegistration Statement”), a Registration Statement on Form S-3 ) to enable the resale of the Shares by the Investors from time to timetime through the automated quotation system of the Nasdaq Stock Market or in privately-negotiated transactions, and provide the Investor at least two (2) business days to review and provide comments to the Registration Statement before filing with the SEC;
(b) use its best efforts, subject to receipt of necessary information from the InvestorsInvestor reasonably requested by the Company, to cause the Registration Statement to become effective as soon as practicable, but in no event later than ninety sixty (9060) days unless such after the Registration statement Statement is reviewed filed by the SEC, in which case Company. If the number of days shall be increased to one hundred twenty (120) Registration Statement has not been declared effective by the SEC on or before the date that is 90 days after the Closing Date (the “Required Effective Date”). If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required Effective Date, then the Company shall, immediately following on the Required Filing Date (if not then so filed) 91st day and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as partial compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) 1% of the Purchase Price purchase price paid for the Shares purchased by the Investor, Investor and not previously sold by the Investor (but in no event to exceed 8% in the aggregate) until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all The Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis during each 30 day period and will be paid to the Investor by wire transfer or check within five (5) Business Days business days after the earlier of (i) the end of each 30 day period following the Required Effective Date or (ii) the effective date that each payment is dueof the Registration Statement;
(c) use its commercially 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 ending on not exceeding, with respect to 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 pursuant to paragraph (kthen held by the Investor without restriction by the volume limitations of Rule 144(e) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (iiiii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement or Rule 144statement, 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 (in paper or electronic version) of the Registration Statement and the Prospectus Statement, Prospectuses (including supplemental prospectuses), ) and 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 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 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 1 6.1 and the registration of the Shares pursuant to the Registration Statement;; and
(g) advise the Investors, promptly after it shall receive receives notice or obtain obtains 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 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 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 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 soldresold; (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 request, as long as the Investor owns any Shares, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) 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 1 6.1 that the Investor shall furnish to the Company such information and representations regarding Investoritself, 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 and/or sale under Rule 144Shares. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination the Investor being deemed an underwriter by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 1 contract
Samples: Stock Purchase Agreement (Endocardial Solutions Inc)
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of necessary information from the Investors, prepare and file with the Securities and Exchange Commission (“SEC”), within as soon as practicable, but in no event later than thirty (30) Calendar Days days after the Closing Date (the “Required Filing 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;time through the automated quotation system of the Nasdaq Stock Market or in privately negotiated transactions. If the Registration Statement is not declared effective by August 2, 2000 (the "Final Effectiveness Date") and does not remain effective for 30 continuous days from the first date of effectiveness, the Purchaser shall be entitled to a stock dividend in the amount of 2%; provided that the amount of such stock dividend shall increase by 1.5% at each of the first two three-month anniversaries of the Final Effectiveness Date if the Registration Statement has not been declared effective and remained effective for 30 continuous days from the date of first effectiveness as of such three month anniversaries; provided further that any such stock dividend shall not exceed in the aggregate 5%.
(b) use its best reasonable 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 ninety (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (120) days after the Closing Date (the “Required Effective Date”). If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required Effective Date, then the Company shall, immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is dueCompany;
(c) use its commercially 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 ending on not exceeding, with respect to 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 pursuant to paragraph (kthen held by the Investor without restriction by the volume limitations of Rule 144(e) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (iiiii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement or Rule 144, and to notify each Investor promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective by the SECstatement;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies (in paper or electronic version) of the Registration Statement Statement, Prospectuses and Preliminary Prospectuses in conformity with the Prospectus (including supplemental prospectuses), 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 (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph (a) through (e) of this Section 1 7.1 and the registration of the Shares pursuant to the Registration Statement;; and
(g) advise the InvestorsInvestor, 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 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 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 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 on which the Company is not required to keep the Registration Statement current and effective with respect to the Investor’s Shares may be resold pursuant to Rule 144(k's Shares, as specified in paragraph (c) or (B) such date as all of the Investor’s Shares shall have been soldabove; (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 request, as long as the Investor owns any Shares, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) 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 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 1 7.1 that the Investor shall furnish to the Company such information and representations regarding Investoritself, 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 and/or sale under Rule 144Shares. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination the Investor being deemed an underwriter by the SEC that the Investor is deemed an underwriter 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) 120 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Samples: Stock Purchase Agreement (Incyte Pharmaceuticals Inc)
Registration Procedures and Expenses. (a) The Company shallwill:
(ai) subject to receipt of necessary information from the Investors, prepare and file with the Securities and Exchange Commission (“SEC”), within thirty (30) Calendar Days after the Closing Date (the “Required Filing Date”), a Registration Statement on Form S-3 to enable the resale of the Shares by the Investors from time to time;
(b) use its 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 ninety sixty (9060) days unless such following the Closing Date (the “Filing Date”), use its reasonable best efforts to prepare and file with the Commission a registration statement on Form S-3 or another appropriate form only if Form S-3 is not available (the “Registration statement is reviewed Statement”) covering the resale of the Shares and the Warrant Shares (each of the Shares and Warrant Shares, 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 exchange for or with respect to any of the foregoing, in each case held at the relevant time by an Investor, the “Registrable Securities”) by each Investor (the parties acknowledge that the Company may choose to include, at its option and solely for its convenience, the Registrable Securities on a Registration Statement with other similar securities sold by the SECCompany to third party purchasers not acting in concert with any of the Investors);
(ii) use its reasonable best efforts to cause the Registration Statement, as amended, to become effective under the 1933 Act as soon as practicable but in which case the number of days shall be increased to one hundred twenty any event no later than sixty (12060) days after the Closing Date (the “Required Effective DateEffectiveness Deadline”). If ; provided, that if the Commission reviews and has comments to the filed Registration Statement (i) has not been filed by that would require the Required Filing Date or (ii) has not been declared filing of a pre-effective by amendment thereto with the SEC on or before the Required Effective DateCommission, then the Company shall, immediately following the Required Filing Date Effectiveness Deadline shall be one-hundred and twenty (if not then so filed120) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days days after the date Closing Date; and provided, further, that each payment is due;
(c) the Company shall use its commercially reasonable best efforts to respond within 10 days to any comments or requests for information from the Commission;
(iii) prepare and file with the SEC Commission 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 ending on until the earlier of (i) the date on which the Investor all Registrable Securities covered by such Registration Statement may sell Shares be sold pursuant to paragraph (kRule 144(k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) 1933 Act, or (ii) such time as all Shares Registrable Securities purchased by such Investor in this Offering the Investors have been sold pursuant to a registration statement or Rule 144, and to notify each Investor promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective (B) as may be reasonably requested by the SECan Investor in order to incorporate information concerning such Investor or such Investor’s intended method of distribution;
(div) so long as the Registration Statement is effective covering the resale of Registrable Securities owned by the Investors, furnish to each Investor with respect to the Investor Registrable Securities registered under the Registration Statement (and to each underwriter, if any, of such Registrable Securities) such reasonable number of copies (in paper or electronic version) of the Registration Statement prospectuses and the Prospectus (including supplemental prospectuses), such other documents as the such Investor may reasonably request, request in order to facilitate the public sale or other disposition of all or any of the Shares Registrable Securities by the such Investor;
(ev) use commercially reasonable efforts to file documents required of the Company for normal blue sky Blue Sky clearance in states reasonably specified in writing by the InvestorInvestors; provided, however, that the Company shall not be required to qualify to do business or consent to service of process generally in any jurisdiction in which it the Company is not now so qualified or has not so consented;
(fvi) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph (a) through (e) of this Section 1 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 Investors or underwriting discounts, brokerage fees and commissions incurred by the Investors, if any in connection with an underwritten offering of the Registrable Securities;
(gvii) 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 it will promptly use its all commercially reasonable efforts to prevent the issuance of any stop order or other order suspending the effectiveness of such Registration Statement and, if such an order is issued, to obtain its the withdrawal thereof at the earliest possible moment time and to notify each Investor of the issuance of such order and the resolution thereof;
(viii) furnish to each Investor, on the date that such Registration Statement becomes effective, a letter, dated such date, addressed to such Investor, confirming the effectiveness of such Registration Statement and the absence of any stop order;
(ix) immediately notify the Investors, at any time when a Prospectus relating to Registrable Securities is required to be delivered under the 1933 Act, upon discovery that, or upon the happening of any 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 omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and at the request of any such Investor, promptly prepare and furnish to such Investor an electronic copy of a supplement to or an amendment of such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;
(x) provide to each Investor and its representatives, if requested, the opportunity to conduct a reasonable inquiry of the Company’s financial and other records during normal business hours and make available its officers, directors and employees for questions regarding information which such stop Investor may reasonably request in order should to fulfill any due diligence obligation on its part;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission under the 1933 Act and the 1934 Act, take such other actions as may be issuedreasonably necessary to facilitate the registration of the Registrable Securities hereunder; and make available to its security holders, as soon as reasonably practicable, an earnings statement covering a period of at least twelve (12) months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the 1933 Act, including Rule 158 promulgated thereunder; and
(hxii) permit counsel for each Investor to review, and provide comments on, the Registration Statement and all amendments and supplements thereto, not less than 3 Business Days prior to the filing thereof with the Commission, and the Company shall incorporate all such comments which are reasonable; provided, that in the case of clauses (viii), (x) and (xii) above, the Company shall not be required to provide, and shall not provide, any Investor with material, non-public information unless such Investor agrees to receive such information prior to its disclosure and enters into a written confidentiality agreement with the Company.
(b) The Company shall be permitted to suspend for one or more periods (provided that the aggregate length of such suspension shall not exceed twenty business days in any 365 day period) the actions required under Sections 7.1(a)(i) through (iii) to the extent that the Board of Directors of the Company concludes in good faith that the Company is, considering the advice of counsel, in possession of material non-public information, the disclosure of which would have a material adverse effect on the business, operations, properties or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole.
(c) With a view to making available to the Investor Investors the benefits of Rule 144 promulgated under the 1933 Act (“Rule 144”) (or its successor rule) and any other rule or regulation of the Commission that may at any time permit the Investor Investors 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 Investors’ 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 Investors’ Registrable Securities shall have been soldresold; (ii) file with the SEC Commission in a timely manner all reports and other documents required of the Company under the Securities Act and under the Exchange 1934 Act; and (iii) furnish to the each Investor upon request request, as long as such Investor owns any Registrable Securities, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange 1934 Act, (B) a copy (in paper or electronic version) 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 such Investor of any rule or regulation of the Commission that permits the selling of any such Shares Registrable Securities without registration. It shall be .
(d) If a condition precedent Registration Statement covering the Registrable Securities is not filed with the Commission on or prior to the obligations Filing Date, is not declared effective by the Effectiveness Deadline or is subject to a suspension pursuant to Section 7.1(b) that exceeds the number of days permitted thereunder, the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 1.5% of the aggregate amount invested by such Investor (the “Investment Amount”) for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been filed or effective for which no Registration Statement is filed or effective with respect to the Registrable Securities; provided, however, that in no event shall the aggregate amount of liquidated damages payable by the Company to take any action pursuant to this Agreement exceed the lesser of (1) 15% of the Investment Amount or (2) the liquidity value of the Registrable Securities, representing the value difference between registered and unregistered shares, as contemplated in EITF 00-19, EITF 05-4 and other applicable rules, regulations and interpretations of the Financial Accounting Standards Board, the Emerging Issues Task Force and the Securities and Exchange Commission. Except as set forth in Section 1 10 of the Warrants, with respect to the extension of the term of the Warrants, such payments shall be in full compensation to each Investor, and shall constitute such Investor’s exclusive remedy for such events; provided, however, that the Investors shall retain the right to pursue all available equitable remedies. Such payments shall be made to each Investor in cash. Notwithstanding anything in this Agreement to the contrary, the Company shall not be liable for money damages for any delay in effectiveness or other suspension that is caused by events beyond its control.
(e) As a condition to the inclusion of its Registrable Securities under the Registration Statement, each Investor shall furnish to the Company such information and representations regarding Investor, the Shares to be sold by Investor, such Investor and the intended method of disposition of distribution proposed by such securities Investor as the Company may reasonably request in writing, including completing a Registration Statement Questionnaire in the form provided by the Company, or as shall be required in connection with any registration referred to effect the registration of the Shares and/or sale under Rule 144in this Section 7.1. The Company understands shall not be required to include the Registrable Securities of any Investor in a Registration Statement and shall not be required to pay any liquidated or other damages under Section 7.1(d) to any Investor who fails to furnish to the Company a fully completed Registration Statement Questionnaire, if requested by the Company, at least five trading days prior to the Filing Date (the “Questionnaire Delivery Date”); provided that the Company provides such Investor disclaims being an underwriterat least 5 trading days prior written notice of the Questionnaire Delivery Date, but acknowledges that a determination by which notice references the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereundersubject Registration Statement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Rainmaker Systems Inc)
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of necessary information from the Investors, prepare and file with the Securities and Exchange Commission SEC, as soon as practicable, but in no event later than the date that is fifteen (“SEC”), within thirty (3015) Calendar Days business days after the Closing Date (the “Required Filing 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 timetime through the automated quotation system of the Nasdaq Stock Market or in privately-negotiated transactions;
(b) use its 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 ninety sixty (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (12060) days after the Closing Date (Registration Statement is filed by the “Required Effective Date”)Company. If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required Effective date that is 121 days after the Closing Date, then the Company shall, immediately following on the Required Filing 121st day after the Closing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment issue to the Investor as compensation .01 additional shares of Common Stock (which shall be deemed to be Shares) for such delay (every Share purchased in the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, Offering until the Registration Statement is filed or declared effective by the SEC. Notwithstanding SEC (rounded up to the foregoingnearest Share after aggregating all Shares held by the Investor); provided, however, that the Company shall issue such additional shares only to the extent it determines, in no event its sole discretion, it is permitted to issue shares without seeking shareholder approval, including, without limitation, pursuant to the Nasdaq Marketplace Rules, and the Company shall pay the total Investors the cash value of all Late Registration Payments exceed in the aggregate ten percent (10%) remaining shares it is not permitted to issue, which cash value shall be based on the closing bid price of such Purchase Price. Late Registration Payments, if any, will be prorated the shares on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment the issuance is duerequired hereunder;
(c) use its commercially 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 ending on not exceeding, with respect to 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 pursuant to paragraph (kthen held by the Investor without restriction by the volume limitations of Rule 144(e) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (iiiii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement or Rule 144statement, 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 (in paper or electronic version) of the Registration Statement and the Prospectus Statement, Prospectuses (including supplemental prospectuses), ) and preliminary versions of the Prospectus filed with the Securities Exchange Commission ("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 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 all states specified in writing by the Investorrequiring blue sky clearance; 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 1 6.1 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 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 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 '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 's Shares shall have been soldresold; (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 request, as long as the Investor owns any Shares, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) 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 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 1 6.1 that the Investor shall furnish to the Company such information and representations regarding Investoritself, 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 and/or sale under Rule 144Shares. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination the Investor being deemed an underwriter by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 1 contract
Samples: Stock Purchase Agreement (Nastech Pharmaceutical Co 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) subject to receipt of necessary information from the Investors, prepare and file with the Securities and Exchange Commission (“SEC”), within thirty (30) Calendar Days after the Closing Date (the “Required Filing Date”), a Registration Statement on Form S-3 to enable the resale of the Shares by the Investors from time to time;
(b) use its 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 ninety (90) 30 days unless such Registration statement is reviewed following the receipt by the SECCompany of all of the Purchasers' Registration Statement Questionnaires, in which case file with the number of days shall be increased to one hundred twenty (120) days after the Closing Date (the “Required Effective Date”). If Commission the Registration Statement (i) has not been filed on Form S-3 relating to the sale of the Underlying Shares by the Required Filing Date Purchaser from time to time on 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;
(iib) has not been declared effective by use its reasonable efforts, subject to receipt of necessary information from the SEC on or before Purchasers, to cause the Required Effective Date, then Commission to notify the Company shall, immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for Commission's willingness to declare the Shares purchased by the Investor, until Registration Statement effective within 75 days after the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is dueCompany;
(c) use its commercially 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 ending on until the earlier of (i) two years after the effective date of the Registration Statement or (ii) the date on which the Investor Underlying Shares may sell Shares pursuant to paragraph (k) be resold by the Purchasers without registration by reason of Rule 144 144(k) under the Securities Act or any successor other rule (“Rule 144”) or (ii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement or Rule 144, and to notify each Investor promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective by the SECof 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 (in paper or electronic version) of the Registration Statement prospectuses and the Prospectus (including supplemental prospectuses), 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, however, that the obligation of the Company to deliver copies of prospectuses to the Purchaser shall be subject to the receipt by the Company of reasonable assurances from the Purchaser that the 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;
(e) file documents required of the Company for normal blue sky Blue Sky clearance in 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
(f) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph paragraphs (a) through (e) of this Section 1 7.1 and the registration of the Underlying Shares pursuant to the Registration Statement;
(g) advise , other than fees and expenses, if any, of counsel or other advisers to the InvestorsPurchaser or the Other Purchasers or underwriting discounts, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order brokerage fees and commissions incurred by the SEC delaying Purchaser or suspending the effectiveness Other Purchasers, if any. Notwithstanding any other provision of the Registration Statement or of the initiation of any proceeding for that purpose; and 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 a view to making available to the Investor the benefits of Rule 144 or other rule that may permit the Investor to sell Shares without registrationthis Agreement, the Company hereby agrees to that it may only suspend the use its commercially reasonable efforts to: (iof any prospectus as described in Section 5(b) make of this Agreement three times during any 365-day period 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 (B) such date as all of the Investor’s Shares shall have been sold; (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 a written statement that the Company has complied with the reporting requirements total number of the Securities Act and the Exchange Act, a copy (in paper or electronic version) 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 that permits the selling of days for 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 1 that the Investor shall furnish to the Company such information and representations regarding Investor, 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 and/or sale under Rule 144. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is deemed an underwriter individual suspension shall not relieve the Company of any obligations it has hereunderexceed 60.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of necessary information from as soon as practicable, but in no event later than thirty days following the InvestorsClosing Date (the “Filing Deadline”), prepare and file with the Securities and Exchange Commission (“SEC”), within thirty (30) Calendar Days after SEC the Closing Date (the “Required Filing Date”), a Registration Statement on Form S-3 relating to enable the resale of the Common Stock and or Conversion Shares (including shares of Common Stock issuable as a result of an anti-dilution adjustment to the Conversion Price (as defined in the Articles of Amendment) and any capital stock of the Company issued with respect to the Shares or the Conversion Shares as a result of any stock split, stock dividend, recapitalization, exchange or similar event or otherwise (collectively, the “Registrable Securities”) by the Investors Purchaser and the Other Purchasers from time to timetime on the NYSE, or the facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions;
(b) use its best efforts, subject to receipt of necessary information from the InvestorsPurchasers, to cause the SEC to declare the Registration Statement to become effective as soon as practicablewithin 45 days or, but in no event later than ninety (90) days unless such if the Registration statement Statement is reviewed selected for review by the SEC, in which case the number of days shall be increased to one hundred twenty (120) 120 days after the Closing Date (Date, and in any event no later than five business days following notification from the “Required Effective Date”). If SEC that the Registration Statement will not be subject to review or that the SEC has no further comments to the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required Effective Date, then the Company shall, immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (the “Late Registration PaymentsEffective Deadline”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is due);
(c) use its commercially reasonable best efforts to promptly 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 ending on until the earlier earliest of (i) one year after the effective date on which of the Investor may sell Shares Registration Statement or (ii) such time as Registrable Securities become eligible for resale by each of the Purchasers without any volume limitations or other restrictions pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor other rule (“Rule 144”) or (ii) 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 Shares purchased by such Investor in this Offering of the Registrable Securities have been sold pursuant to a registration statement the Registration Statement 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 Purchaser with respect to the Registrable Securities registered under the Registration Statement (and to each underwriter, if any, of such Registrable Securities) such number of copies (in paper or electronic version) of the Registration Statement prospectuses and the Prospectus (including supplemental prospectuses), 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 InvestorPurchaser;
(e) file documents required of the Company for normal blue sky Blue Sky clearance in 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;
(f) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph paragraphs (a) through (e) of this Section 1 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 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) 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) in order to enable the Purchasers to sell the Registrable Securities under Rule 144 to the Securities Act, for a period of one year from Closing, use its reasonable best efforts to comply with the issuance requirements of any stop order Rule 144, including without limitation, use its reasonable best efforts to comply with the requirements of Rule 144(c)(1) with respect to public information about the Company and to timely file all reports required to be filed by the SEC delaying or suspending Company under the effectiveness of Exchange Act.
(j) ensure that the 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 initiation circumstances in which they were made) not misleading;
(k) notify the Purchaser in writing of the happening of any proceeding for 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 purpose; and it will the Company shall endeavor that such notice not contain any material, nonpublic information), and, promptly prepare a supplement or amendment to such Registration Statement to correct such untrue statement or omission;
(l) use its commercially reasonable 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 prompt withdrawal of such order or suspension and to notify each Purchaser who holds Registrable Securities being sold of the issuance of such order and the resolution thereof or its withdrawal at receipt of actual written notice of the earliest possible moment if initiation or written threat of any proceeding for such stop order should be issuedpurpose; and
(hm) with a view to making available include in the “plan of distribution” section of the Registration Statement disclosure substantially to the Investor the benefits of Rule 144 effect that: “The selling stockholders may enter into derivative transactions with third parties, or other rule that may permit the Investor sell securities not covered by this prospectus to sell Shares without registration, the Company agrees to use its commercially reasonable efforts to: third parties in privately negotiated transactions.
(in) make refrain from preparing 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 (B) such date as all of the Investor’s Shares shall have been sold; (ii) file filing with the SEC in a timely manner all reports and other documents required of Registration Statements until the Company under the Securities Act and under the Exchange Act; and (iii) furnish Registration Statement relating to the Investor upon request a written statement that the Company has complied with the reporting requirements of the Registrable Securities Act and the Exchange Act, a copy (in paper or electronic version) 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 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 1 that the Investor shall furnish to the Company such information and representations regarding Investor, 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 and/or sale under Rule 144is effective. The Company understands that the Investor Purchaser disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is Purchaser being deemed an underwriter shall not relieve the Company of any obligations it has hereunder.. If the SEC requires that the Purchaser be named as an underwriter in the Registration Statement, the Purchaser may (and the Company will use its best efforts to allow) withdraw its Securities from the Registration Statement. A draft of the proposed form of the Registration Statement Questionnaire related to the Registration Statement to be completed by the Purchaser is attached hereto as Appendix I.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of necessary information from the InvestorsInvestors reasonably requested by the Company, prepare and file with the Securities and Exchange Commission (“SEC”), within thirty ten (3010) Calendar Days business days after the Closing Date (the “Required Filing 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 timetime through the automated quotation system of the Nasdaq Stock Market or in privately-negotiated transactions, and provide the Investor at least two (2) business days to review and provide comments to the Registration Statement before filing with the SEC;
(b) use its best efforts, subject to receipt of necessary information from the InvestorsInvestor reasonably requested by the Company, to cause the Registration Statement to become effective as soon as practicable, but in no event later than ninety sixty (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (12060) days after the Closing Date (Registration Statement is filed by the “Required Effective Date”)Company. If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the date that is 90 days after the Closing Date (the "Required Effective Date"), then the Company shall, immediately following on the Required Filing Date (if not then so filed) 91st day and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment to the Investor as partial compensation for such delay (the “"Late Registration Payments”") an amount equal to one half of one percent (0.5%) 1% of the Purchase Price purchase price paid for the Shares purchased by the Investor, Investor and not previously sold by the Investor (but in no event to exceed 8% in the aggregate) until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event shall the total of all The Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis during each 30 day period and will be paid to the Investor by wire transfer or check within five (5) Business Days business days after the earlier of (i) the end of each 30 day period following the Required Effective Date or (ii) the effective date that each payment is dueof the Registration Statement;
(c) use its commercially 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 ending on not exceeding, with respect to 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 pursuant to paragraph (kthen held by the Investor without restriction by the volume limitations of Rule 144(e) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (iiiii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement or Rule 144statement, 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 (in paper or electronic version) of the Registration Statement and the Prospectus Statement, Prospectuses (including supplemental prospectuses), ) and 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 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 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 1 6.1 and the registration of the Shares pursuant to the Registration Statement;; and
(g) advise the Investors, promptly after it shall receive receives notice or obtain obtains 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 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 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 '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 's Shares shall have been soldresold; (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 request, as long as the Investor owns any Shares, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) 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 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 1 6.1 that the Investor shall furnish to the Company such information and representations regarding Investoritself, 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 and/or sale under Rule 144Shares. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination the Investor being deemed an underwriter by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 1 contract
Samples: Stock Purchase Agreement (Endocardial Solutions Inc)
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of necessary information from the Investors, prepare and file with the Securities and Exchange Commission (“SEC”), within as soon as practicable, but in no event later than thirty (30) Calendar Days days after the Closing Date Date, a registration statement on Form S-3 (the “Required Filing DateRegistration Statement”), a Registration Statement on Form S-3 ) to enable the resale of the Shares and the Warrant Shares by the Investors from time to timetime through the automated quotation system of the Nasdaq SmallCap Market or in privately-negotiated transactions;
(b) use its 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 ninety (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (120) days after the Closing Date (the “Required Effective Date”)Closing. If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required Effective date that is 90 days after the Closing Date, then the Company shall, immediately following on the Required Filing 121st day after the Closing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment pay to the Investor as compensation for such delay (the “Late Registration Payments”) an amount in cash equal to one half of one percent (0.5%) 1% of the Purchase Price paid for aggregate purchase price of the Shares common stock purchased by the such Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, in no event Any such amounts due pursuant to this Section 6.1(b) shall the total be pro rated for periods of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is dueless than 30 days;
(c) use its commercially 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 ending on not exceeding, with respect to 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 pursuant to paragraph (kthen held by the Investor without restriction by the volume limitations of Rule 144(e) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (iiiii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement or Rule 144, and to notify each Investor promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective by the SECstatement;
(d) furnish to the Investor with respect to the Shares and Warrant Shares registered under the Registration Statement (i) one copy of the Prospectus within two days after the Registration Statement is declared effective by the SEC and (ii) such number of copies (in paper or electronic version) of the Registration Statement and the Prospectus Statement, Prospectuses (including supplemental prospectuses), ) and preliminary versions of the Prospectus filed with the Securities Exchange Commission (“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 and Warrant Shares 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 all states specified in writing by the Investorrequiring blue sky clearance; 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 1 6.1 and the registration of the Shares and Warrant 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 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 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 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 Securities shall have been soldresold; (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 request, as long as the Investor owns any Shares or Warrant Shares, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) 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 or Warrant Shares without registration. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 1 6.1 that the Investor shall furnish to the Company such information and representations regarding Investoritself, the Shares Securities 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 and/or sale under Rule 144Securities. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination the Investor being deemed an underwriter by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
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 Securities and Exchange Commission (“SEC”), within thirty ten (3010) Calendar Business Days after the Closing Date (the “Required Filing Date”), a Registration Statement on Form S-3 to enable the resale of the Shares by the Investors from time to timetime on the NYSE or in privately-negotiated transactions; provided, however, that Investor acknowledges that the Company may not be permitted to file a Registration Statement on Form S-3 from February 15, 2004 until such time as its financial statements for the year ended December 31, 2003 are available and have been filed with the SEC, and agrees that the Company may defer the filing in order to ensure compliance with Rule 3-12 of Regulation S-X;
(b) use its 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 ninety sixty (9060) days unless such after the Registration statement Statement is reviewed filed by the SEC, in which case Company. If the number of days shall be increased to one hundred twenty Registration Statement (120i) has not been declared effective by the SEC on or before the date that is seventy-five (75) days after the Closing Date (the “Required Effective Date”). If , the Registration Statement (i) has not been filed by Company shall, on the Required Filing Date or (ii) has not been declared effective by the SEC on or before Business Day immediately following the Required Effective Date, then as the Company shall, immediately following the Required Filing Date (if not then so filed) and the Required Effective Date (if not then so effective)case may be, and on each 30th day anniversary thereafter, make a payment to the Investor as compensation for such delay (together, the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) 1% of the Purchase Price paid for the Shares purchased then owned by the Investor, Investor until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing; provided, however, that in no event shall the total of all Late Registration Payments payments made pursuant to this paragraph (b) if any, exceed in the aggregate ten percent (10%) 12% of such Purchase Price. Late Registration Payments, if any, Payments will be prorated on a daily basis during each 30 day period and will be paid to the Investor by wire transfer or check within five (5) Business Days after the earlier of (i) the end of each 30 day period following the Required Effective Date or (ii) the effective date that each payment is dueof the Registration Statement;
(c) use its commercially 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 or advisable to keep the Registration Statement current and effective for a period ending on the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell Shares pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (iiiii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement 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 (in paper or electronic version) of the Registration Statement and the Prospectus (including supplemental prospectuses), ) filed with the SEC in conformance with the requirements of the Securities Act and other such 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;
(e) file documents required of the Company for normal make any necessary 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 consentedfilings;
(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 1 6.1 and the registration of the Shares pursuant to the Registration Statement;
(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 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
(h) with With a view to making available to the Investor the benefits of Rule 144 or 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 commercially reasonable 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 qualify to 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 soldresold; (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 request, as long as the Investor owns any Shares, (A) a written statement that by the Company as to whether it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) 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 1 6.1 that the Investor shall furnish to the Company such information and representations regarding Investoritself, the Shares to be sold by Investor, and the intended method of disposition of such securities as shall be required reasonably requested by the Company to effect the registration of the Shares and/or sale under Rule 144Shares. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
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 Securities and Exchange Commission SEC, as soon as practicable, but in no event later than ten (“SEC”), within thirty (3010) Calendar Days business days after the Closing Date (the “Required Filing 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;
(b) time through the automated quotation system of the Nasdaq Stock Market or in privately-negotiated transactions; use its 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 ninety sixty (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (12060) days after the Closing Date (Registration Statement is filed by the “Required Effective Date”)Company. If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on or before the Required Effective date that is 60 days after the Closing Date, then the Company shall, immediately following on the Required Filing 61st day after the Closing Date (if not then so filed) and the Required Effective Date (if not then so effective), and on each 30th day anniversary thereafter, make a payment issue to the Investor as compensation .01 additional shares of Common Stock (which shall be deemed to be Shares), up to a maximum of .09 additional shares of Common Stock, for such delay (every Share purchased in the “Late Registration Payments”) an amount equal to one half of one percent (0.5%) of the Purchase Price paid for the Shares purchased by the Investor, Offering until the Registration Statement is filed or declared effective by the SEC. Notwithstanding SEC (rounded up to the foregoing, in no event shall nearest Share after aggregating all Shares held by the total of all Late Registration Payments exceed in the aggregate ten percent (10%) of such Purchase Price. Late Registration Payments, if any, will be prorated on a daily basis and will be paid to Investor by wire transfer or check within five (5) Business Days after the date that each payment is dueInvestor);
(cb) use its commercially 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 ending on not exceeding, with respect to each Investor's Shares purchased hereunder, the earlier earliest 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 volume limitations pursuant to paragraph (kRule 144(k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (iiiii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement or Rule 144, and to notify each Investor promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective by the SECstatement;
(dc) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies (in paper or electronic version) of the Registration Statement and the Prospectus Statement, Prospectuses (including supplemental prospectuses), ) and preliminary versions of the Prospectus filed with the Securities and Exchange Commission ("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 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;
(ed) file documents required of the Company for normal blue sky clearance in (i) in all U.S. jurisdictions in which any of the Shares are originally sold, and (ii) in states specified in writing by the Investor; , provided, however, that that, as to clause (ii) 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) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph (a) through (e) of this Section 1 6.1 and the registration of the Shares pursuant to the Registration Statement;; and
(gf) 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 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
(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 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 '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 's Shares shall have been soldresold; (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 request, as long as the Investor owns any Shares, (A) a written statement that by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) 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 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 1 6.1 that the Investor shall furnish to the Company such information and representations regarding Investoritself, the Shares 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 and/or sale under Rule 144Shares. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination the Investor being deemed an underwriter by the SEC that the Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 1 contract
