Registration Procedures and Other Matters. The Company shall: (a) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day), a registration statement on Form S-3 (the “Registration Statement”) to enable the resale of the Shares by the Investors from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions; (b) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement; (c) use its best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period 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 without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement; (d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writing, 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 and use its best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented; (f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares pursuant to the Registration Statement; and (g) advise the 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 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SEC.
Appears in 4 contracts
Samples: Stock Purchase Agreement (Rita Medical Systems Inc), Stock Purchase Agreement (Rita Medical Systems Inc), Stock Purchase Agreement (Rita Medical Systems Inc)
Registration Procedures and Other Matters. The Company shall:
(a) use its reasonable best efforts, subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide each Purchaser for inclusion in such informationfiling, prepare and file with the SEC, SEC within 10 30 days after following the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by filing of its annual report on the next succeeding business day)Form 10-K with the SEC for 2003, a registration statement on Form S-1, or if available, Form S-3 (the “"Registration Statement”") to enable covering the resale of Securities held by each Purchaser, or the Shares by the Investors Holders (defined in Section 7.4 below), from time to time through time, in compliance with the automated quotation system Securities Act and shall amend the Registration Statement upon the exercise by the Company of the Nasdaq National Market or Call Right in privately-negotiated transactionsaccordance with the terms set forth herein;
(b) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, use its reasonable best efforts to cause the Registration Statement to become effective within 45 days as promptly as practicable after the Registration Statement is filed by the Companyfiling, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “"Prospectus”") as may be necessary to keep the Registration Statement current, continuously effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares purchased hereunderHolder's Securities, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor each Holder may sell all Shares Securities then held by the Investor such Holder without restriction by the volume limitations of Rule 144(e) of the Securities Act, Act or (iiiii) such time as all Shares Securities purchased by such Investor in this Offering Holder have been sold pursuant to a registration statementstatement or are otherwise freely tradeable;
(d) furnish to the Investor each Holder with respect to the Shares Securities registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor such Holder may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Shares Securities by the Investorsuch Holder; provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary preliminary Prospectuses to the Investor such Holder shall be subject to the receipt by the Company of reasonable assurances from the Investor such Holder that the Investor such Holder will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor each Holder and use its reasonable best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c7.3(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) 7.3 and the registration of the Shares Securities pursuant to the Registration Statement; andStatement (provided, that the Holders shall bear the cost of all underwriting discounts and selling commissions and similar fees applicable to the sale of Securities and all fees and expenses of legal counsel for any Holder and all transfer Taxes);
(g) advise the Investor, each Holder promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation or threat of any proceeding for that purpose; and it will promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued; and
(h) use its reasonable best efforts to cause the Common Stock underlying the shares of Preferred Stock and the Warrants to be listed on Nasdaq in connection with the filing of the Registration Statement. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SECSecurities.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Warburg Pincus Private Equity Viii L P), Securities Purchase Agreement (Proxim Corp), Securities Purchase Agreement (Warburg Pincus Private Equity Viii L P)
Registration Procedures and Other Matters. The Company Issuer shall:
(a) subject to receipt of necessary information from the Investor Purchasers after prompt request from the Company Issuer to the Investors Purchasers to provide such information, promptly following the Closing but no later than 60 days after the Closing (the “Filing Date”), prepare and file with the Securities and Exchange Commission (the “SEC, within 10 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day), ”) a registration statement on Form S-3 or such other successor form (except that if the Issuer is not then eligible to register for resale the Converted Shares on Form S-3, in which case such registration shall be on Form S-1 or any successor form) (a “Registration Statement”) to enable the resale of the Shares Converted Shares, by the Investors Purchasers or their transferees from time to time through over the automated quotation system of the Nasdaq National Market American Stock Exchange or in privately-negotiated transactions. No Purchaser may include any Converted Share in the Registration Statement pursuant to this Agreement unless such Purchaser furnishes to the Issuer in writing within five business days after receipt of request therefor, such requested information;
(b) use commercially reasonable efforts, subject to receipt of necessary information from the Investor Purchasers after prompt request from the Company Issuer to the Investors Purchasers to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statementas soon as practicable;
(c) use its best commercially reasonable efforts to cause such Registration Statement to remain continuously effective and prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “Prospectus”) (and the applicable Exchange Act reports incorporated therein by reference, so filed on a timely basis) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceedingending on the date that is, with respect to each InvestorPurchaser’s Converted Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor Purchaser may sell all Converted Shares then held by the Investor Purchaser without restriction by the volume limitations of under Rule 144(e) of the Securities Act144(k), or (iiiii) such time as all Converted Shares purchased by such Investor Purchaser in this Offering have been sold pursuant to a registration statement;
(d) so long as a Purchaser holds Converted Shares, provide copies to and permit single legal counsel designated by the Purchasers to review the Registration Statement and all amendments and supplements thereto, no fewer than three business days prior to their filing with the SEC, and not file any Registration Statement, amendment or supplement thereto to which a holder of the Converted Shares reasonably objects in writing within such three business day period;
(e) furnish to the Investor Purchasers with respect to the Converted Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and preliminary Prospectuses (“Preliminary Prospectuses Prospectuses” and individually, “Preliminary Prospectus”) in conformity with the requirements of the Securities Act and such other documents as the Investor Purchasers may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Converted Shares by the InvestorPurchasers; provided, however, that the obligation of the Company Issuer to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor Purchasers shall be subject to the receipt by the Company Issuer of reasonable assurances from the Investor Purchasers that the Investor Purchasers will comply with the applicable provisions of prospectus delivery requirements under 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;
(ef) file documents required of the Company Issuer for normal blue sky clearance in states specified in writing by the Investor Purchasers and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company Issuer is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c8.1(b); provided, however, that the Company Issuer shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(fg) bear all expenses in connection promptly notify the Purchasers after it receives notice of the time when the Registration Statement has been declared effective by the SEC, or when a supplement or amendment to any Registration Statement has been filed with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares pursuant to the Registration StatementSEC; and
(gh) advise the InvestorPurchasers, promptly promptly: (a) 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 best 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event ; and (b) at any time before the Registration Statement becomes effective with respect when a Prospectus relating to the Converted Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of is required to be delivered under the Securities Act, without upon discovery that, or upon the prior written consent happening of an event as a result of which, the Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a majority material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in interest light of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, circumstances then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SECexisting.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Contango Oil & Gas Co), Securities Purchase Agreement (Contango Oil & Gas Co)
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide each Purchaser for inclusion in such informationfiling, prepare and file with the SEC, within 10 days after the Second Closing Date (Date, or, in case the Company's stockholders do not approve sale of Shares at the Second Closing, 10 days following the stockholder meeting at which such action was taken), or, if no such tenth day meeting is a Saturdayheld prior to December 31, Sunday or holiday2001, then by the next succeeding business day)within 10 days after such date, a registration statement on Form S-3 (the “"Registration Statement”") to enable the resale of the Common Stock issued or issuable upon conversion of the Shares (the "Registrable Securities") by each Purchaser, or the Investors Holders (defined in Section 7.4 below), from time to time through time, in compliance with the automated quotation system of the Nasdaq National Market or in privately-negotiated transactionsSecurities Act;
(b) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, use its reasonable best efforts to cause the Registration Statement to become effective within 45 60 days after the Registration Statement is filed by the Company, Company such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 4560-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus Prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares purchased hereunderHolder's Registrable Securities, the earlier of (i) the second anniversary of the Closing Datedate of the effectiveness of the Registration Statement, (ii) the date on which the Investor each Holder may sell all Shares Registrable Securities then held by the Investor such Holder without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares Registrable Securities purchased by such Investor in this Offering Holder have been sold pursuant to a registration statementstatement or are otherwise freely tradeable;
(d) furnish to the Investor each Holder with respect to the Shares Registrable Securities registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor such Holder may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Shares Registrable Securities by the Investorsuch Holder; provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor such Holder shall be subject to the receipt by the Company of reasonable assurances from the Investor such Holder that the Investor such Holder will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor each Holder and use its reasonable best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c7.3(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (ef) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) 7.3 and the registration of the Shares Registrable Securities pursuant to the Registration StatementStatement (provided that the Holders shall bear the cost of all underwriting discounts and selling commissions and similar fees applicable to the sale of Registrable Securities and all fees and expenses of legal counsel for any Holder and all transfer taxes); and
(g) advise the Investoreach Holder, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation or threat of any proceeding for that purpose; and it will promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the SharesRegistrable Securities. In no event at any time before the Registration Statement becomes effective with respect to the Shares Registrable Securities shall the Company publicly announce or file any other registration statement, other than registrations registration statements on Form S-8 or for transactions covered by Rule 145 of the Securities ActS-8, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable dateHolders. The Company understands that the Investor disclaims Holders disclaim being an underwriterunderwriters, but the Investor any Holder being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, however that if the Company receives notification from the SEC that the Investor any Holder 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 2 contracts
Samples: Stock Purchase Agreement (Warburg Pincus Private Equity Viii L P), Stock Purchase Agreement (Synaptic Pharmaceutical Corp)
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 not later than 60 days after from the Closing Termination Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day“Filing Date”), a registration statement on Form S-3 SB-2 or such other successor form (except that if the Company is not then eligible to register for resale the Registrable Securities (as defined below) on Form SB-2, in which case such registration shall be on any form available for registration) (the “Registration Statement”) to enable the resale of the Shares shares of Common Stock underlying the Units and the shares of Common Stock underlying the Warrants and any Additional Shares, as defined below (the “Registrable Securities”) by the Investors from time to time through the automated OTCBB quotation system of the Nasdaq National Market or in other privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 effective, not later than 120 days after from the Registration Statement is filed by Termination Date (the Company“Effectiveness Date”), such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45120-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares Registrable Securities purchased hereunder, the earlier of (i) the second anniversary of the final Closing Datedate, (ii) the date on which the Investor Investors may sell all Shares Registrable Securities then held by the Investor Investors without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares Registrable Securities purchased by such Investor the Investors in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor Investors with respect to the Shares Registrable Securities registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses prospectuses and Preliminary Prospectuses preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor Investors may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Shares Registrable Securities by the InvestorInvestors; provided, however, that the obligation of the Company to deliver copies of Prospectuses prospectuses or Preliminary Prospectuses preliminary prospectuses to the Investor Investors shall be subject to the receipt by the Company of reasonable assurances from the Investor Investors that the Investor Investors will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses prospectuses or Preliminary Prospectuses;preliminary prospectuses.
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor Investors and use its reasonable best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); 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) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the SEC under the Securities Act and the Exchange Act, and take such other actions as may be reasonably necessary to facilitate the registration of the Registrable Securities hereunder;
(g) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares Registrable Securities pursuant to the Registration Statement; and;
(gh) advise the InvestorInvestors, 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 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SEC.and
Appears in 2 contracts
Samples: Securities Purchase Agreement (Power Efficiency Corp), Securities Purchase Agreement (Power Efficiency Corp)
Registration Procedures and Other Matters. The Company shall:
(a) upon the request of a majority-in-interest of the Purchasers, use its reasonable best efforts, subject to receipt of necessary information from the Investor after prompt request from the Company each Purchaser for inclusion in such filing, to the Investors to provide such information, prepare and file with the SEC, SEC within 10 180 days after the Closing Date (or, if closing of a Qualified Transaction or such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)other time as shall be mutually agreed to, a registration statement on Form S-3 (the “"Registration Statement”") to enable covering the resale of Securities held by each Purchaser, or the Shares by the Investors Holders (defined in Section 7.4 below), from time to time through time, in compliance with the automated quotation system of the Nasdaq National Market or in privately-negotiated transactionsSecurities Act;
(b) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, use its reasonable best efforts to cause the Registration Statement to become effective within 45 days as promptly as practicable after the Registration Statement is filed by the Companyfiling, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “"Prospectus”") as may be necessary to keep the Registration Statement current, continuously effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares purchased hereunderHolder's Securities, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor each Holder may sell all Shares Securities then held by the Investor such Holder without restriction by the volume limitations of Rule 144(e) of the Securities Act, Act or (iiiii) such time as all Shares Securities purchased by such Investor in this Offering Holder have been sold pursuant to a registration statementstatement or are otherwise freely tradeable;
(d) furnish to the Investor each Holder with respect to the Shares Securities registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor such Holder may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Shares Securities by the Investorsuch Holder; provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary preliminary Prospectuses to the Investor such Holder shall be subject to the receipt by the Company of reasonable assurances from the Investor such Holder that the Investor such Holder will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor each Holder and use its reasonable best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c7.3(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) 7.3 and the registration of the Shares Securities pursuant to the Registration Statement; andStatement (provided, that the Holders shall bear the cost of all underwriting discounts and selling commissions and similar fees applicable to the sale of Securities and all fees and expenses of legal counsel for any Holder and all transfer Taxes);
(g) advise the Investor, each Holder promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation or threat of any proceeding for that purpose; and it will promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued; and
(h) use its reasonable best efforts to cause the Common Stock to be issued in connection with the Exchange to be listed on Nasdaq in connection with the filing of the Registration Statement. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SECSecurities.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Proxim Corp), Securities Purchase Agreement (Warburg Pincus Private Equity Viii L P)
Registration Procedures and Other Matters. The Company shall:
(ai) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 days after no later than December 12, 2005 (the Closing Date (or, if earlier of the date such tenth day registration statement is a Saturday, Sunday actually filed or holiday, then by is required to be filed is the next succeeding business day“Filing Date”), a registration statement on Form S-3 X-0, Xxxx X-0, or Form S-1 (the “Registration Statement”) to enable the resale of the Shares Registrable Securities by the Investors from time to time through the automated any quotation system of on which the Nasdaq National Market Common Stock is quoted or listed, if applicable, or in privately-negotiated transactions;
(bii) use its best efforts, subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, information (provided that failure on the part of one Investor shall not relieve the Company from its obligation to use its best efforts with respect to complying Investors), to cause the Registration Statement to become effective on or before the date that is the earliest of (1) in the event of no review by the staff of the SEC (the “Staff”), within 45 5 days of being informed by the Staff that the Staff has decided not to review the Registration Statement, but in no event later than 30 days after the Filing Date, (2) in the event of a review by the Staff, within 5 days of being informed by the Staff that the Staff have no further comments on such Registration Statement, but in no event later than 90 days after the Filing Date (the earliest of (1) and (2) thereof, the “Required Effective Date” and the date the Registration Statement is filed initially declared effective by the CompanySEC, the “Effective Date”), such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c; and, in the event that the filing referred to in Section 2(a)(i) above is on a form other than Form S-3, the Company shall use its best efforts, subject to receipt of necessary information from the Investors after prompt request from the Company to the Investors to provide such information (provided that failure on the part of one Investor shall not relieve the Company from its obligation to use best efforts with respect to complying Investors), to prepare and file with the SEC such amendments and supplements SEC, within 10 days after the Company first becomes eligible to the Registration Statement and the prospectus used in connection therewith file a registration statement on Form S-3, a registration statement on Form S-3 (the “ProspectusS-3 Registration Statement”) as may be necessary to keep enable the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares purchased hereunder, the earlier of (i) the second anniversary resale of the Closing Date, (ii) Registrable Securities by the date Investors from time to time through any quotation system on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, Common Stock is quoted or (iii) such time as all Shares purchased by such Investor listed or in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writing, 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 and use its best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the 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 purposeprivately-negotiated transactions; and it will promptly to use its 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the S-3 Registration Statement to become effective at as soon as practicable thereafter, such efforts to include, without limiting the earliest generality of the foregoing, preparing and filing with the SEC as promptly as practicable date. The Company understands any financial statements that are required to be filed prior to the Investor disclaims being an underwriter, but effectiveness of such S-3 Registration Statement (the Investor being deemed an underwriter term “Registration Statement” shall mean the S-1 or S-2 Registration Statement until the S-3 Registration Statement is declared effective by the SEC SEC, after which time it shall not relieve mean 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 S-3 Registration Statement with the SECStatement).
Appears in 2 contracts
Samples: Registration Rights Agreement (Artisoft Inc), Registration Rights Agreement (Artisoft Inc)
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 sixty (60) days after the Closing Date Date, (or, if such tenth the sixtieth day after the Closing Date is not a Saturday, Sunday or holidaybusiness day, then by the next succeeding first business day), day thereafter) a registration statement on Form S-3 (the “"S-3 Registration Statement”") to enable the resale of the Shares by the Investors from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions;
(b) use its best efforts, subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the S-3 Registration Statement to become effective within 45 60 days after the S-3 Registration Statement is filed by the CompanyCompany (or, if the sixtieth day is not a business day, the first business day thereafter), such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 4560-day period any financial statements that are required to be filed prior to the effectiveness of such S-3 Registration Statement;
(c) use its best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s 's Shares purchased hereunder, the earlier of (i) the second third anniversary of the Closing DateDate (as adjusted to give effect to any "Suspension" pursuant to Section 7.2(c) hereof), (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in pursuant to this Offering agreement have been sold pursuant to a registration statement;
(d) furnish to the each Investor with respect to the Shares registered under the S-3 Registration Statement such number of copies of the S-3 Registration Statement, Prospectuses prospectuses and Preliminary Prospectuses preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the such Investor may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Shares by the such Investor; provided, however, that the obligation of the Company to deliver copies of Prospectuses prospectuses or Preliminary Prospectuses preliminary prospectuses to the such Investor shall be subject to the receipt by the Company of reasonable assurances from the such Investor that the such Investor will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses prospectuses or Preliminary Prospectusespreliminary prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor Investors and use its best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the S-3 Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares pursuant to the S-3 Registration StatementStatement except with respect to any legal or attorney fees incurred by any of the Investors in connection with the S-3 Registration Statement and any amendments thereto; and
(g) advise the each Investor, promptly after it the Company shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the S-3 Registration Statement or of the initiation or threat of any proceeding for that purpose; and it will promptly use its 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. Notwithstanding anything to The Investors acknowledge that the contrary herein, Company may include on the S-3 Registration Statement shall cover only shares of Common Stock of the SharesCompany for resale by certain other stockholders of the Company, and that the Company may file a subsequent registration statement for the resale of shares of Common Stock by certain other stockholder of the Company. In no other event at any time before the S-3 Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations registration statements on Form S-8 or for transactions covered by Rule 145 of the Securities ActS-8, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SEC.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Orphan Medical Inc), Stock Purchase Agreement (Orphan Medical Inc)
Registration Procedures and Other Matters. The Company shall:
(a) use its reasonable best efforts, subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide each Purchaser for inclusion in such informationfiling, prepare and file with the SEC, SEC within 10 30 days after following the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by filing of its annual report on the next succeeding business day)Form 10-K with the SEC for 2003, a registration statement on Form S-1, or if available, Form S-3 (the “"Registration Statement”") to enable covering the resale of Securities held by each Purchaser, or the Shares by the Investors Holders (defined in Section 7.4 below), from time to time through time, in compliance with the automated quotation system Securities Act and shall amend the Registration Statement upon the exercise by the Company of the Nasdaq National Market or Call Right in privately-negotiated transactionsaccordance with the terms set forth herein;
(b) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, use its reasonable best efforts to cause the Registration Statement to become effective within 45 days as promptly as practicable after the Registration Statement is filed by the Companyfiling, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “"Prospectus”") as may be necessary to keep the Registration Statement current, continuously effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares purchased hereunderHolder's Securities, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor each Holder may sell all Shares Securities then held by the Investor such Holder without restriction by the volume limitations of Rule 144(e) of the Securities Act, Act or (iiiii) such time as all Shares Securities purchased by such Investor in this Offering Holder have been sold pursuant to a registration statementstatement or are otherwise freely tradeable;
(d) furnish to the Investor each Holder with respect to the Shares Securities registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor such Holder may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Shares Securities by the Investorsuch Holder; provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor such Holder shall be subject to the receipt by the Company of reasonable assurances from the Investor such Holder that the Investor such Holder will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor each Holder and use its reasonable best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c7.3(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) 7.3 and the registration of the Shares Securities pursuant to the Registration Statement; andStatement (provided, that the Holders shall bear the cost of all underwriting discounts and selling commissions and similar fees applicable to the sale of Securities and all fees and expenses of legal counsel for any Holder and all transfer Taxes);
(g) advise the Investor, each Holder promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation or threat of any proceeding for that purpose; and it will promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued; and
(h) use its reasonable best efforts to cause the Common Stock underlying the shares of Preferred Stock and the Warrants to be listed on the Nasdaq National Market in connection with the filing of the Registration Statement. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SECSecurities.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Proxim Corp), Securities Purchase Agreement (Warburg Pincus Private Equity Viii L P)
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)Date, a registration statement on Form S-3 S-1 (the “"S-1 Registration Statement”") to enable the resale of the Shares by the Investors from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the S-1 Registration Statement to become effective within 45 30 days after the S-1 Registration Statement is filed by the Company, Company such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 4530-day period any financial statements that are required to be filed prior to the effectiveness of such S-1 Registration Statement;
(c) use its reasonable best efforts efforts, subject to receipt of necessary information from the Investors after prompt request from the Company to the Investors to provide such information, to prepare and file with the SEC such amendments and supplements SEC, within 10 days after the Company first becomes eligible to the Registration Statement and the prospectus used in connection therewith file a registration statement on Form S-3, a registration statement on Form S-3 (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period 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 without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the "S-3 Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with ") to enable the requirements of the Securities Act and such other documents as the Investor may reasonably request in writing, in order to facilitate the public sale or other disposition of all or any resale of the Shares by the Investor; provided, however, that Investors from time to time through the obligation automated quotation system of the Company Nasdaq National Market or in privately-negotiated transactions; and 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 and use its best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the 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 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its reasonable best efforts to cause the S-3 Registration Statement to become effective at as soon as practicable thereafter, such efforts to include, without limiting the earliest generality of the foregoing, preparing and filing with the SEC as promptly as practicable date. The Company understands any financial statements that are required to be filed prior to the Investor disclaims being an underwriter, but effectiveness of such S-3 Registration Statement (the Investor being deemed an underwriter term "Registration Statement" shall mean the S-1 Registration Statement until the S-3 Registration Statement is declared effective by the SEC SEC, after which time it shall not relieve mean 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 S-3 Registration Statement with the SECStatement).
Appears in 2 contracts
Samples: Stock Purchase Agreement (Medicines Co/ Ma), Stock Purchase Agreement (Warburg Pincus Ventures Lp)
Registration Procedures and Other Matters. (a) The Company shall:
(ai) subject to receipt of necessary information from as soon as possible but in any event not later than the Investor after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 days 45th day after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day), file a registration statement on Form S-3 (or, if Form S-3 is not then available, on such form of registration statement as is then available to effect a registration of the “Registration Statement”Shares and Warrant Shares) to enable the resale of the Shares and the Warrant Shares by the Investors Subscribers from time to time through (the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions"Registration Statement");
(bii) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, use its best commercially reasonable efforts to cause a Registration Statement to be declared effective by the SEC as soon as possible, but in any event not later than the earlier of (a) the 120th day following the Closing Date, and (b) the fifth trading day following the date on which the Company is notified by the SEC that the Registration Statement will not be reviewed or is no longer subject to become effective within 45 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing further review and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statementcomments;
(ciii) use its best commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “"Prospectus”") as may be necessary to keep the Registration Statement continuously current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investorthe Subscriber’s Shares and Warrant Shares purchased hereunderhereunder from the date it is first declared effective until, the earlier of (iA) two years from the second anniversary date of the Closing Datefinal exercise of all of the Warrants, (iiB) the date on which the Investor Subscriber may sell all Shares and Warrant Shares then held by the Investor Subscriber pursuant to Rule 144 without any restriction by as to the volume limitations number of Rule 144(e) securities as of the Securities Acta particular date that can then be immediately sold, or (iiiC) the public sale of all of the Shares and the Warrant Shares (such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statementperiod, the "Effectiveness Period");
(div) if (A) the Registration Statement is not filed on or prior to the date of filing required pursuant to Section 9.1(a)(i), (B) the Registration Statement is not declared effective on or prior to the date required by Section 9.1(a)(ii), or (C) notwithstanding Section 9.2, after the date first declared effective by the SEC and prior to the expiration of the Effectiveness Period, the Registration Statement ceases to be effective and available to each Subscriber as to its Shares and Warrant Shares (whether pursuant to Section 9.2(c), or otherwise) without being succeeded within 20 trading days by an effective amendment thereto or by a subsequent registration statement filed with and declared effective by the SEC, (any such failure being referred to as an "Event" and the date of such failure being the "Event Date"), then, in addition to any other rights available to the Subscriber under this Agreement or applicable law: (w) on the failure by the Company to comply with the Event required pursuant to Section 9.1(a)(i) the Company shall pay to the Subscriber an amount in cash, as liquidated damages and not as a penalty, equal to two percent of the Subscription Price paid by the Subscriber and on each monthly anniversary of such Event Date (if the Event has not been cured by such date) until the applicable Event is cured, the Company shall pay to the Subscriber a further amount in cash, as liquidated damages and not as a penalty, equal to two percent of the Subscription Price paid by the Subscriber; (x) on the failure by the Company to comply with the Event required pursuant to Section 9.1(a)(ii) or the occurrence of the Event set forth in Section 9.1(a)(iv)(C) and on each monthly anniversary of such Event Dates (if the Event has not been cured by such date) until the applicable Event is cured, an amount shall accrue and be payable by the Company to the Subscriber, as liquidated damages and not as a penalty, equal to two percent of the Subscription Price paid by the Subscriber; (y) provided however that if the foregoing Events set forth in (x) is cured by the Company within 90 days of the applicable Event Date, all liquidated damages that have accrued and are due and owing by the Company to the Subscriber shall be payable in Units (to be registered in accordance with the terms of this Agreement), as liquidated damages and not as a penalty; and (z) if an Event is not cured within 90 days of the applicable Event Date, all liquidated damages that have accrued and are owed and continue to accrue to the Subscriber shall be paid in cash, and any liquidated damages that accrue after one year from the Closing Date shall not exceed six percent of the Subscription Price paid by the Subscriber. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event;
(v) furnish to the Investor Subscriber with respect to the Shares and the Warrant Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities 1933 Act and such other documents as the Investor Subscriber may reasonably request in writing, in order to facilitate the public sale or other disposition of all or any of the Shares or Warrant Shares by the InvestorSubscriber; provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor Subscriber shall be subject to the receipt by the Company of reasonable assurances from the Investor Subscriber that the Investor Subscriber will comply with the applicable provisions of the Securities 1933 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;
(evi) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor Subscriber and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c9.1(a)(iii); 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;
(fvii) bear all expenses in connection with the procedures in paragraph (ai) through (evi) of this Section 7.1 9.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the InvestorSubscriber, including attorneys’ fees) and the registration of the Shares pursuant to the Registration Statement); and
(gviii) advise the Investor, Subscriber 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 or threat of any proceeding for that purpose; and it will promptly use its best 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. .
(b) Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the SharesShares and the Warrant Shares and such other securities issued by the Company subject to registration rights. In no event at any time before the Registration Statement becomes effective with respect to the Shares and Warrant Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or registrations for transactions covered other securities issued by Rule 145 of the Securities ActCompany subject to registration rights, without the prior written consent of a majority 66-2/3% in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SECSubscribers.
Appears in 2 contracts
Samples: Private Placement Subscription Agreement (Eden Energy Corp), Private Placement Subscription Agreement (Eden Energy Corp)
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 90 days after the first Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)Date, a registration statement on Form S-3 S-1 (the “"Registration Statement”") to enable the resale of the Shares by the Investors from time to time through over the OTC or other automated quotation system of the Nasdaq National Market or national securities exchange or in privately-negotiated transactions;
(b) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use its best reasonable commercial efforts to cause the Registration Statement to become effective within 45 days after the Registration Statement is filed by the Companyas soon thereafter as practicable, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statementusing all commercially reasonable efforts;
(c) use its best all commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus Prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s 's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, 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 and use its best reasonable commercial efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ ' fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ feesattorney fees of the Investor) and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the 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 best reasonable commercial 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities ActS-8, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but if the SEC deems the Investor being deemed to be an underwriter by underwriter, the SEC Company shall not relieve the Company be relieved of any obligations it has hereunder; provided, however, however that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Samples: Stock Purchase Agreement (Vitacube Systems Holdings Inc)
Registration Procedures and Other Matters. The Company Issuer shall:
(a) subject to receipt of necessary information from the Investor Purchasers after prompt request from the Company Issuer to the Investors Purchasers to provide such information, promptly following the Closing but no later than the 30th day following the Closing Date (the “Filing Date”), prepare and file with the Securities and Exchange Commission (the “SEC, within 10 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day), ”) a registration statement on Form S-3 or such other successor form (except that if the Issuer is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on Form S-1 or any successor form) (a “Registration Statement”) to enable the resale of the Shares Registrable Securities, by the Investors Purchasers or their transferees from time to time through over the automated quotation system of AMEX or any other national exchange on which the Nasdaq National Market Issuer’s Common Stock is then traded, or in privately-negotiated transactions. No Purchaser may include any shares of Registrable Securities in the Registration Statement pursuant to this Agreement unless such Purchaser furnishes to the Issuer in writing within ten business days after receipt of request therefor, such requested information;
(b) use its commercially reasonable efforts, subject to receipt of necessary information from the Investor Purchasers after prompt request from the Company Issuer to the Investors Purchasers to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement90th day following the Closing Date (the “Effectiveness Date”);
(c) use its best commercially reasonable efforts to cause such Registration Statement to remain continuously effective and prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “Prospectus”) (and the applicable Exchange Act reports incorporated therein by reference, so filed on a timely basis) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceedingending on the date that is, with respect to each InvestorPurchaser’s Shares purchased hereunderRegistrable Securities, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor Purchaser may sell all Shares Registrable Securities then held by the Investor Purchaser without restriction by the volume limitations of under Rule 144(e144(k) of (or any similar provision then in force under the Securities Act), or (iiiii) such time as all Shares Registrable Securities purchased by such Investor in this Offering Purchaser have been sold or otherwise transferred pursuant to a registration statementstatement or otherwise;
(d) so long as a Purchaser holds Registrable Securities, provide copies to and permit a single legal counsel designated by the Purchasers to review the Registration Statement and all amendments and supplements thereto, no fewer than three business days prior to their filing with the SEC, and not file any Registration Statement, amendment or supplement thereto to which a holder of the Registrable Securities reasonably objects in writing within such three business day period;
(e) furnish to the Investor Purchasers with respect to the Shares registered under Registrable Securities included in the Registration Statement such number of copies of the Registration Statement, Prospectuses and preliminary Prospectuses (“Preliminary Prospectuses Prospectuses” and individually, “Preliminary Prospectus”) in conformity with the requirements of the Securities Act and such other documents as the Investor Purchasers may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Shares Registrable Securities by the InvestorPurchasers; provided, however, that the obligation of the Company Issuer to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor Purchasers shall be subject to the receipt by the Company Issuer of reasonable assurances from the Investor Purchasers that the Investor Purchasers will comply with the applicable provisions of prospectus delivery requirements under the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary ProspectusesProspectuses by the Purchasers;
(ef) file documents required of the Company Issuer for normal customary blue sky clearance in states specified in writing by the Investor Purchasers and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company Issuer is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c9.1(b); provided, however, that the Company Issuer shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(fg) bear all expenses in connection promptly notify the Purchasers after it receives notice of the time when the Registration Statement has been declared effective by the SEC, or when a supplement or amendment to any Registration Statement has been filed with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares pursuant to the Registration Statement; andSEC;
(gh) advise the InvestorPurchasers, promptly promptly: (i) after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation or threat of any proceeding for that purpose; and it will promptly use its best 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event ; and (ii) at any time before the Registration Statement becomes effective with respect when a Prospectus relating to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of Registrable Securities is required to be delivered under the Securities Act, without upon discovery that, or upon the prior written consent happening of an event as a result of which, the Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a majority material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in interest light of the Investors. The Investor acknowledges circumstances then existing;
(i) upon request and agrees that subject to appropriate confidentiality obligations, furnish to each Purchaser copies of any and all transmittal letters or other correspondence with the Company shall not be regarded SEC or any other governmental agency or self-regulatory body or other body having jurisdiction (including any domestic or foreign securities exchange) relating to have breached its “best efforts” obligation under Section 7.1(bsuch offering of Registrable Securities;
(j) ifin the case of an Underwritten Offering, owing to a review furnish upon request, (i) an opinion of counsel for the Issuer dated the effective date of the Registration Statement applicable registration statement or the date of any amendment or supplement thereto, and a letter of like kind dated the date of the closing under the underwriting agreement, and (ii) a “cold comfort” letter, dated the date of the applicable registration statement or the date of any amendment or supplement thereto and a letter of like kind dated the date of the closing under the underwriting agreement, in each case, signed by the SEC staffindependent public accountants who have certified the Issuer’s financial statements included or incorporated by reference into the applicable registration statement, and each of the Registration Statement does not become effective within 45 days after opinion and the Registration Statement is filed “cold comfort” letter shall be in customary form and covering substantially the same matters with respect to such registration statement (and the prospectus and any prospectus supplement included therein) as are customarily covered in opinions of issuer’s counsel and in accountants’ letters delivered to the underwriters in Underwritten Offerings of securities and such other matters as such underwriters or Purchasers may reasonably request;
(k) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the SEC, provided that following receipt and make available to its security holders, as soon as reasonably practicable, an earnings statement, which earnings statement shall satisfy the provisions of notice Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;
(l) make available to the appropriate representatives of the managing underwriter and the Purchasers access to such review, information and Issuer personnel as is reasonable and customary to enable such parties to establish a due diligence defense under the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunderSecurities Act; provided, however, that the Issuer need not disclose any such information to any such representative unless and until such representative has entered into or is otherwise subject to a confidentiality agreement with the Issuer satisfactory to the Issuer; and
(m) cause all such Registrable Securities registered pursuant to this Agreement to be listed on each securities exchange or nationally recognized quotation system on which similar securities issued by the Issuer are then listed. The Issuer agrees that, if any Purchaser could reasonably be deemed to be an “underwriter”, as defined in Section 2(a)(11) of the Company receives notification from Securities Act, in connection with the SEC that the Investor is deemed an underwriterregistration statement in respect of Registrable Securities and any amendment or supplement thereof (any such registration statement or amendment or supplement a “Purchaser Underwriter Registration Statement”), then the period by which the Company is obligated Issuer will cooperate with such Purchaser in allowing such Purchaser to submit an acceleration request conduct customary “underwriter’s due diligence” with respect to the SEC shall be extended Issuer and satisfy its obligations in respect thereof. In addition, at any Purchaser’s request, the Issuer will furnish to such Purchaser, on the earlier date of the effectiveness of any Purchaser Underwriter Registration Statement and thereafter from time to time on such dates as such Purchaser may reasonably request, (i) a letter, dated such date, from the 90th day after Issuer’s independent certified public accountants in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to such SEC notificationPurchaser, or and (ii) 120 days after an opinion, dated as of such date, of counsel representing the initial filing Issuer for purposes of the such Purchaser Underwriter Registration Statement, in form, scope and substance as is customarily given in an underwritten public offering, including standard “10b-5” assurances for such offering, addressed to such Purchaser. The Issuer will also permit legal counsel to such Purchaser to review and comment upon any such Purchaser Underwriter Registration Statement at least five business days prior to its filing with the SECSEC and all amendments and supplements to any such Purchaser Underwriter Registration Statement within a reasonable number of days prior to their filing with the SEC and not file any Purchaser Underwriter Registration Statement or amendment or supplement thereto in a form to which such Purchaser’s legal counsel reasonably objects.
Appears in 1 contract
Samples: Securities Purchase Agreement (Abraxas Petroleum Corp)
Registration Procedures and Other Matters. The Company shall:
(ai) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, promptly following the First Closing but no later than 30 days after the First Closing Date (the "Filing Date"), prepare and file with the SEC, within 10 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day), SEC a registration statement on Form S-3 or such other successor form (except that if the “Company is not then eligible to register for resale the Registrable Securities (as defined below) on Form S-3, in which case such registration shall be on Form S-1 or any successor form) (a "Registration Statement”") to enable the resale of the Shares and the Underlying Shares (collectively, the "Registrable Securities") issued or issuable in connection with the Shares and Warrants issued at the First Closing (the "First Closing Registrable Securities"), by the Investors or their transferees from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactionstransactions and, if the Company has not filed the Registration Statement by the Filing Date, then the Company shall pay in cash as liquidated damages for such failure and not as a penalty to each Investor an amount equal to one and one-half percent (1.5%) of such Investor's pro rata share of the purchase price paid by all Investors for Shares purchased pursuant to the Agreements and then outstanding and owned by such Investor, for each thirty (30) day period thereafter, which shall be pro rated for such periods less than thirty (30) days, until a Registration Statement has been filed;
(bii) if the Second Closing occurs, subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, promptly following the Second Closing but no later than 20 days after the Second Closing Date (the "Additional Filing Date"), prepare and file with the SEC a Registration Statement, or amend the Registration Statement filed pursuant to clause (i) above, if such Registration Statement has not previously been declared effective, to enable the resale of the Registrable Securities issued or issuable in connection with the Shares and Warrants issued at the Second Closing (the "Second Closing Registrable Securities"), by the Investors or their transferees from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions and, if the Company is required to but has not filed such Registration Statement or amendment by the Additional Filing Date, then the Company shall pay in cash as liquidated damages for such failure and not as a penalty to each Investor an amount equal to one and one-half percent (1.5%) of such Investor's pro rata share of the purchase price paid by all Investors for Shares purchased pursuant to the Agreements and then outstanding and owned by such Investor, for each thirty (30) day period thereafter, which shall be pro rated for such periods less than thirty (30) days, until such Registration Statement or amendment has been filed;
(b) use its best efforts commercially reasonable efforts, subject to receipt of necessary information from the Investors 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; provided, however, that if (x) a Registration Statement covering the First Closing Registrable Securities has not been declared effective by the SEC within 45 ninety (90) days after following the First Closing Date (or one hundred and twenty (120) days if the SEC reviews the Registration Statement), or (y) a Registration Statement covering the Second Closing Registrable Securities has not been declared effective by the SEC within ninety (90) days following the Second Closing Date (or one hundred and twenty (120) days if the SEC reviews the Registration Statement), then the Company shall pay in cash as liquidated damages for each such failure and not as a penalty to each Investor an amount equal to one and one-half percent (1.5%) of such Investor's pro rata share of the purchase price paid by all Investors for Shares purchased pursuant to the Agreements and then outstanding, for each thirty (30) day period thereafter, which shall be pro rated for such periods less than thirty (30) days, until the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;has been declared effective.
(c) use its reasonable best efforts to cause such Registration Statement to remain continuously effective, subject to the terms of Section 7.2(c) below, prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus Prospectus used in connection therewith (and the “Prospectus”applicable Exchange Act reports incorporated therein by reference, so filed on a timely basis) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceedingending on the date that is, with respect to each Investor’s Shares '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 all Shares Registrable Securities then held by the Investor without restriction by the volume limitations of under Rule 144(e) of the Securities Act144(k), or (iiiii) such time as all Shares Registrable Securities purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) so long as the Investor holds Registrable Securities, provide copies to and permit legal counsel designated by the Investor to review the Registration Statement and all amendments and supplements thereto, no fewer than three business days prior to their filing with the SEC, and not file any Registration Statement, amendment or supplement thereto to which a holder of the Investor's Registrable Securities reasonably objects in writing within such three business day period;
(e) furnish to the Investor with respect to the Shares Registrable Securities registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses (under cover of the form of letter attached hereto as Exhibit D) and preliminary Prospectuses ("Preliminary Prospectuses Prospectuses" and individually, "Preliminary Prospectus") in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, 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 prospectus delivery requirements under 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;
(ef) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor and use its reasonable best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(fg) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares Registrable Securities pursuant to the Registration Statement; and, including up to $25,000 for all Investors in the aggregate (or pro rata in relation to the purchase price paid for the Securities purchased by each Investor if, in the aggregate, such expenses exceed $25,000) in connection with any review by the Investor's counsel of the Registration Statement;
(gh) promptly notify the Investors after it receives notice of the time when the Registration Statement has been declared effective by the SEC, or when a supplement or amendment to any Registration Statement has been filed with the SEC;
(i) advise the Investor, promptly promptly: (a) 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 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. Notwithstanding anything ; and (b) at any time when a Prospectus relating to Registrable Securities is required to be delivered under the Securities Act, upon discovery that, or upon the happening of an event as a result of which, the Prospectus included in the 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
(j) use its reasonable best efforts to comply in all material respects with all applicable rules and regulations of the SEC under the Securities Act and the Exchange Act and make generally available to its security holders earning statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the contrary hereinrequirements of Rule 158. 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 Registrable Securities to the public without registration, the Registration Statement Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's 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 Registrable Securities shall cover only have been resold; (ii) file with the SharesSEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Registrable Securities, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act; (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q (exclusive of exhibits thereto), 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 such Registrable Securities without registration. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 X-0, Xxxx X-0 or for transactions covered by Rule 145 of the Securities Actany successor forms thereof, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier .
(k) The Plan of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of Distribution set forth in the Registration Statement with shall be as set forth in Exhibit C to the SECSecurities Purchase Agreement attached hereto.
Appears in 1 contract
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, prepare within ninety (90) days and file with the SEC, within 10 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day), SEC a registration statement on Form S-3 SB-2 (the “Registration Statement”) to enable the resale of the Shares and Warrant Shares by the Investors from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactionstime;
(b) use its commercially reasonable efforts, subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 90 days after the Registration Statement is filed by the Company, Company such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c) use its best commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus Prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares and Warrant 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 and Warrant Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares and Warrant Shares purchased by such Investor in this Offering have been sold pursuant to a registration statementstatement or exemption from registration;
(d) furnish to the Investor with respect to the Shares and Warrant Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, 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 and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c6.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) 6.1 and the registration of the Shares and Warrant Shares pursuant to the Registration Statement; and
(g) advise the 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 best 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. Notwithstanding anything to the contrary herein, the Company shall only be obligated to register the Shares and Warrant Shares on the Registration Statement shall cover only the SharesStatement. In no event at any time before the Registration Statement becomes effective with respect to the Shares and Warrant Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities ActS-8, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, 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: Securities Purchase Agreement (American Petro-Hunter Inc)
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide Purchaser for inclusion in such informationfiling, prepare and file with the SEC, within 10 days as promptly after the Second Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)as practicable, a registration statement on Form S-3 (the “"Registration Statement”") to enable the resale of the Shares Registrable Securities by the Investors Purchaser or the Holders (as defined below), from time to time through time, in compliance with the automated quotation system Securities Act; provided, however, that in the event the Note Closing shall have occurred but the Second Closing shall not have occurred by May 25, 2003, the Company shall, if requested by the Purchaser, file the Registration Statement covering the Notes, the Initial Warrants and the Common Stock underlying the Notes, and/or the Warrants, as the case may be, as promptly as practicable after the date of the Nasdaq National Market or in privately-negotiated transactionssuch request;
(b) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, use its reasonable best efforts to cause the Registration Statement to become effective within 45 as promptly as practicable (but in no event later than 120 days after the Registration Statement is filed by the CompanySecond Closing Date) after filing, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “"Prospectus”") as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares purchased hereunderHolder's Securities, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor each Holder may sell all Shares Registrable Securities then held by such Holder in any 90-day period pursuant to Rule 144 under the Investor Securities Act (without restriction by giving effect to the volume limitations provisions of Rule 144(e144(k) of as to the Securities Act, Purchaser but not as to subsequent Transferees (as defined below)) or (iiiii) such time as all Shares Registrable Securities purchased by such Investor in this Offering Holder have been sold pursuant to a registration statement, Section 4(1) of the Securities Act or Rule 144 under the Securities Act, or otherwise sold, transferred or assigned in any manner to any Person who is not entitled to the rights provided by this Section 7.3;
(d) furnish to the Investor each Holder with respect to the Shares Securities registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses preliminary prospectuses (if any) in conformity with the requirements of the Securities Act and such other documents as the Investor such Holder may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Shares Securities by such Holder;
(e) include in the Investorplan of distribution for the Prospectus a potential underwritten offering and, if requested by Holders representing a majority of the Registrable Securities (by common share equivalence) (the "Majority Holders"), enter into a underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by such Holders and reasonably acceptable to the Company; provided, however, that the obligation of Purchaser acknowledges that the Company shall not be required to deliver copies of Prospectuses or Preliminary Prospectuses disclose to the Investor shall underwriters or any of their representatives information that would be subject reasonably likely to violate the receipt Company's attorney-client privilege relating to any material matter;
(f) if requested by the Company of reasonable assurances from Majority Holders, supplement the Investor that the Investor will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws Prospectus as may be applicable reasonably requested by the underwriter to enable the underwriter to distribute and sell the Registrable Securities, participate with the underwriter in connection roadshows or similar presentations and otherwise cooperate with the underwriters; provided, however, that the Purchaser acknowledges that the Company shall not be required to disclose to the underwriters or any use of such Prospectuses or Preliminary Prospectusestheir representatives information that would be reasonably likely to violate the Company's attorney-client privilege relating to any material matter;
(eg) file documents required of the Company for normal blue sky clearance in states specified reasonably requested in writing by each Holder named in the Investor Registration Statement and use its reasonable best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c7.3(c); 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;
(fh) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) 7.3 and the registration of the Shares Securities pursuant to the Registration Statement; andStatement (provided that the Holders shall bear the cost of all underwriting discounts and selling commissions and similar fees applicable to the sale of Securities and all fees and expenses of legal counsel for any Holder and all transfer taxes);
(gi) advise the Investor, each Holder promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation or threat of any proceeding for that purpose; and it will promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued; and
(j) use its reasonable best efforts to cause the Common Stock underlying the Notes, the Shares and/or the Warrants, as the case may be, to be listed on the NYSE in connection with the filing of the Registration Statement. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the SharesRegistrable Securities. In no event at any time before the Registration Statement becomes effective with respect to the Shares Securities shall the Company publicly announce or file any other registration statement, other than registrations registration statements on Form S-4 or Form S-8 or for transactions covered by Rule 145 of the Securities Actany similar successor form, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SECHolders.
Appears in 1 contract
Registration Procedures and Other Matters. The Company shall:
(a) 1. subject to Section 7(b), and subject to receipt of necessary information from the Investor Purchaser after prompt request from the Company to the Investors Purchaser to provide such information, which request shall be mailed in accordance with Section 13 hereof no later than 5 business days after the Closing Date, prepare and file with the SEC, within 10 90 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day“Filing Date”), a registration statement on Form S-3 (the “Registration Statement”) to enable the resale of the Shares by the Investors each Purchaser from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions;
(b) 2. subject to receipt of necessary information from the Investor Purchaser after prompt request from the Company to the Investors Purchaser to provide such information, use its best commercially reasonable efforts to cause the Registration Statement to become effective within 45 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed on or prior to the effectiveness of such Registration Statement180th day after the Closing Date (the “Required Effective Date”);
(c) 3. use its best commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus Prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each InvestorPurchaser’s Shares purchased hereunderShares, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor each Purchaser may sell all Shares then held by the Investor each Purchaser without restriction by the volume limitations of Rule 144(e) 144 of the Securities Act, (ii) such time as all Shares issuable pursuant to the Notes have been sold pursuant to a registration statement, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant and Notes cease to a registration statementbe outstanding;
(d) 4. furnish to the Investor each Purchaser with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses, preliminary Prospectuses and Preliminary Prospectuses free writing prospectuses (as defined in Rule 405 under the Securities Act) in conformity with the requirements of the Securities Act and such other documents as the Investor each Purchaser may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investoreach Purchaser; provided, however, that the obligation of the Company to deliver copies of Prospectuses, preliminary Prospectuses or Preliminary Prospectuses free writing prospectuses to the Investor each Purchaser shall be subject to the receipt by the Company of reasonable assurances from the Investor each Purchaser that the Investor each 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, preliminary Prospectuses or Preliminary Prospectusesfree writing prospectuses;
(e) 5. file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor each Purchaser and use its reasonable best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c7(a)(3); 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) 6. bear all expenses in connection with the procedures in paragraph (a1) through (e5) of this Section 7.1 7(a) (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investoreach Purchaser, including attorneys’ feesattorney fees of each Purchaser) and the registration of the Shares pursuant to the Registration Statement; and;
(g) 7. advise the Investoreach 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 or threat of any proceeding for that purpose; and it will promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued; and
8. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 provide a “Plan of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best effortsDistribution” obligation under Section 7.1(b) if, owing to a review section of the Registration Statement by substantially in the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SEC.form attached hereto as Exhibit D.
Appears in 1 contract
Samples: Convertible Note Purchase Agreement (Big Dog Holdings Inc)
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 45 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day“Filing Date”), a registration statement on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form in accordance with the Securities Act and the Exchange Act) (the “Registration Statement”) to enable the resale of the Shares and the Warrant Shares by the Investors from time to time through in compliance with the automated quotation system of the Nasdaq National Market or in privately-negotiated transactionsSecurities Act;
(b) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 days on or prior to the sixtieth (60th) day after the Closing Date (the “Required Effective Date”). However, so long as the Company filed the Registration Statement is filed by the CompanyFiling Date, such efforts to includeif the Registration Statement receives SEC review, without limiting then the generality of Required Effective Date will be the foregoing, preparing and filing with ninetieth (90th) calendar day after the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration StatementClosing Date;
(c) use its best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement in compliance with applicable laws, and the prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s the Shares purchased hereunderby the Investor and the Warrant Shares issued pursuant to the Warrants, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all of the Shares and the Warrant Shares then held by the Investor without restriction by the volume limitations of under Rule 144(e144(k) of the Securities Act, or (iii) such time as all of the Shares purchased by such the Investor in this Offering the transaction contemplated by the Agreement and the Warrant Shares issued to the Investor pursuant to the Warrants have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares and the Warrant Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Shares and the Warrant 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 Investors and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e), (h) and the last paragraph of this Section 7.1 and the registration of the Shares and the Warrant Shares pursuant to the Registration Statement (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, expenses and any other fees or expenses incurred by the InvestorInvestors, including attorneys’ fees) and the registration of the Shares pursuant to the Registration Statement; and);
(g) advise the 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 best commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest as promptly as possible moment if such stop order should be issued. ; and
(h) include in the Registration Statement a “Plan of Distribution” section substantially in the form attached hereto as Exhibit A. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares and the Warrant Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares and the Warrant Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities ActS-8, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of third-party purchasers in the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable dateContemporaneous Offering. The Company understands that the Investor disclaims being an underwriter, but the any Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, however that if the Company receives notification from the SEC that the an 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, notification or (ii) 120 150 days after the initial filing of the Registration Statement with the SEC. The Company may exclude Common Stock from the Registration Statement if required by the SEC in order for the SEC to declare the Registration Statement effective; provided, however, that the Company will use its commercially reasonable efforts to file and have declared effective a subsequent Registration Statement that includes the Common Stock excluded from the initial Registration Statement at such time as it may do so in accordance with the Securities Act as interpreted by the SEC. With respect to any Common Stock that is not included in the initial Registration Statement or a subsequent Registration Statement within 120-days following the Closing Date, the Company shall be required to pay the Investor Liquidated Damages in accordance with Section 7.7; provided, however, that the 10% cap, imposed by Section 7.7 on Liquidated damages shall be deemed ineffective and inoperative. If the SEC deems the registration of the Common Stock to be a primary offering by the Company or any of the third party purchasers in the Contemporaneous Offering, and the SEC prohibits the use of Rule 415 under the Securities Act (or any similar provision then in force) to sell Common Stock on a delayed or continuous basis, then the Investor shall not be obligated to commit to any such primary offering to allow the Registration Statement to be declared effective by the SEC. In such event, if the Registration Statement is not declared effective within 120 days following the Closing Date, then the Company shall be required to pay the Investor Liquidated Damages in accordance with Section 7.7; provided, however, that the 10% cap, imposed by Section 7.7, on Liquidated damages shall be deemed ineffective and inoperative. Within one business day following the effectiveness date of the Registration Statement, the Company shall give notice to the Investor of such effectiveness and, within two business days following such effectiveness, the Company shall use its commercially reasonable efforts to cause its counsel to issue an appropriate opinion or opinions to the transfer agent substantially to the effect that the shares are subject to an effective registration statement and can be reissued free of restrictive legend in accordance with provisions of Section 7.6.
Appears in 1 contract
Samples: Securities Purchase Agreement (Advanced Life Sciences Holdings, Inc.)
Registration Procedures and Other Matters. The Company Parent shall:
(a) subject to receipt of necessary information from the Investor Purchasers after prompt request from the Company Parent to the Investors Purchasers to provide such information, no later than the 30th day following the Trigger Date (the “Filing Date”), prepare and file with the SEC, within 10 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day), Commission a registration statement on Form S-3 or such other successor form (except that if Parent is not then eligible to register for resale the Exchange Shares on Form S-3, in which case such registration shall be on Form S-1 or any successor form) (a “Registration Statement”) to enable the resale of the Shares Exchange Shares, by the Investors Purchasers or their transferees from time to time through over the automated quotation system of the Nasdaq National Market AMEX or any other national exchange on which Parent’s Common Stock is then traded, or in privately-negotiated transactions. No Purchaser may include any Exchange Shares in the Registration Statement pursuant to this Agreement unless such Purchaser furnishes to Parent in writing within ten (10) business days after receipt of request therefor, such requested information;
(b) use its commercially reasonable efforts, subject to receipt of necessary information from the Investor Purchasers after prompt request from the Company Parent to the Investors Purchasers to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 days after prior to the 120th day following the Trigger Date; provided, however, that if Parent has filed the Registration Statement is filed by the Company, such efforts to include, without limiting Filing Date and the generality of Commission has not declared the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed Registration Statement effective prior to the effectiveness date that is specified in Rule 3-12 of such Registration StatementRegulation S-X promulgated by the Commission, then the time period for becoming effective shall be extended to the 180th day following the Trigger Date (the “Effectiveness Date”);
(c) use its best commercially reasonable efforts to cause such Registration Statement to remain continuously effective and prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “Prospectus”) (and the applicable Exchange Act reports incorporated therein by reference, so filed on a timely basis) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceedingending on the date that is, with respect to each InvestorPurchaser’s Exchange Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor Purchaser may sell all Exchange Shares then held by the Investor Purchaser without restriction by the volume limitations of under Rule 144(e) of the Securities Act144(k), or (iiiii) such time as all Exchange Shares purchased received by such Investor in Purchaser pursuant to this Offering Agreement have been sold or otherwise transferred pursuant to a registration statementstatement or otherwise;
(d) so long as a Purchaser holds Exchange Shares received pursuant to this Agreement, provide copies to and permit single legal counsel designated by the Purchasers to review the Registration Statement and all amendments and supplements thereto, no fewer than three (3) business days prior to their filing with the Commission, and not file any Registration Statement, amendment or supplement thereto to which a holder of the Exchange Shares reasonably objects in writing within such three (3) business day period;
(e) furnish to the Investor Purchasers with respect to the Exchange Shares registered under included in the Registration Statement such number of copies of the Registration Statement, Prospectuses and preliminary Prospectuses (“Preliminary Prospectuses Prospectuses” and individually, “Preliminary Prospectus”) in conformity with the requirements of the Securities Act and such other documents as the Investor Purchasers may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Exchange Shares by the InvestorPurchasers; provided, however, that the obligation of the Company Parent to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor Purchasers shall be subject to the receipt by the Company Parent of reasonable assurances from the Investor Purchasers that the Investor Purchasers will comply with the applicable provisions of prospectus delivery requirements under 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;
(ef) file documents required of the Company Parent for normal customary blue sky clearance in states specified in writing by the Investor Purchasers and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company Parent is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company Parent shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(fg) bear all expenses in connection promptly notify the Purchasers after it receives notice of the time when the Registration Statement has been declared effective by the Commission, or when a supplement or amendment to any Registration Statement has been filed with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares pursuant to the Registration Statement; andCommission;
(gh) advise the InvestorPurchasers, promptly promptly: (i) after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC Commission 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 best 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event ; and (ii) at any time before the Registration Statement becomes effective with respect when a Prospectus relating to the Exchange Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of is required to be delivered under the Securities Act, without upon discovery that, or upon the prior written consent happening of an event as a result of which, the Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a majority material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in interest light of the Investors. The Investor acknowledges circumstances then existing;
(i) upon request and agrees that subject to appropriate confidentiality obligations, furnish to each Purchaser copies of any and all transmittal letters or other correspondence with the Company shall not be regarded Commission or any other governmental agency or self-regulatory body or other body having jurisdiction (including any domestic or foreign securities exchange) relating to have breached its “best efforts” obligation under Section 7.1(bsuch offering of Exchange Shares;
(j) ifin the case of an Underwritten Offering, owing to a review furnish upon request, (i) an opinion of counsel for Parent dated the effective date of the Registration Statement applicable registration statement or the date of any amendment or supplement thereto, and a letter of like kind dated the date of the closing under the underwriting agreement, and (ii) a “cold comfort” letter, dated the date of the applicable registration statement or the date of any amendment or supplement thereto and a letter of like kind dated the date of the closing under the underwriting agreement, in each case, signed by the SEC staffindependent public accountants who have certified Parent’s financial statements included or incorporated by reference into the applicable registration statement, and each of the Registration Statement does not become effective within 45 days after opinion and the Registration Statement is filed “cold comfort” letter shall be in customary form and covering substantially the same matters with respect to such registration statement (and the SEC, provided that following receipt prospectus and any prospectus supplement included therein) as are customarily covered in opinions of notice issuer’s counsel and in accountants’ letters delivered to the underwriters in Underwritten Offerings of securities and such review, the Company shall have used other matters as such underwriters or Purchasers may reasonably request;
(k) otherwise use its best commercially reasonable efforts to cause comply with all applicable rules and regulations of the Registration Statement Commission, and make available to become effective at its security holders, as soon as reasonably practicable, an earnings statement, which earnings statement shall satisfy the earliest practicable date. The Company understands that provisions of Section 11(a) of the Investor disclaims being an underwriter, but Securities Act and Rule 158 promulgated thereunder;
(l) make available to the Investor being deemed an appropriate representatives of the managing underwriter by and Purchasers access to such information and Parent personnel as is reasonable and customary to enable such parties to establish a due diligence defense under the SEC shall not relieve the Company of any obligations it has hereunderSecurities Act; provided, however, that Parent need not disclose any such information to any such representative unless and until such representative has entered into or is otherwise subject to a confidentiality agreement with Parent satisfactory to Parent; and
(m) cause all the Exchange Shares registered pursuant to this Agreement to be listed on each securities exchange or nationally recognized quotation system on which similar securities issued by Parent are then listed. Parent agrees that, if any Purchaser could reasonably be deemed to be an “underwriter”, as defined in Section 2(a)(11) of the Company receives notification from Securities Act, in connection with the SEC that the Investor is deemed an underwriterregistration statement in respect of any registration of Exchange Shares of any Purchaser pursuant to this Agreement, and any amendment or supplement thereof (any such registration statement or amendment or supplement a “Purchaser Underwriter Registration Statement”), then Parent will cooperate with such Purchaser in allowing such Purchaser to conduct customary “underwriter’s due diligence” with respect to Parent and satisfy its obligations in respect thereof. In addition, at any Purchaser’s request, Parent will furnish to such Purchaser, on the period by which date of the Company is obligated effectiveness of any Purchaser Underwriter Registration Statement and thereafter from time to submit an acceleration request to the SEC shall be extended to the earlier of time on such dates as such Purchaser may reasonably request, (i) the 90th day after a letter, dated such SEC notificationdate, or from Parent’s independent certified public accountants in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to such Purchaser, and (ii) 120 days after the initial filing an opinion, dated as of the such date, of counsel representing Parent for purposes of such Purchaser Underwriter Registration Statement, in form, scope and substance as is customarily given in an underwritten public offering, including standard “10b-5” assurances for such offering, addressed to such Purchaser. Parent will also permit legal counsel to such Purchaser to review and comment upon any such Purchaser Underwriter Registration Statement at least five (5) business days prior to its filing with the SECCommission and all amendments and supplements to any such Purchaser Underwriter Registration Statement within a reasonable number of days prior to their filing with the Commission and not file any Purchaser Underwriter Registration Statement or amendment or supplement thereto in a form to which such Purchaser’s legal counsel reasonably objects.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Abraxas Petroleum Corp)
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 60 days after the Closing Date Date, (or, if such tenth the 60th day after the Closing Date is not a Saturday, Sunday or holidaybusiness day, then by the next succeeding first business day), day thereafter) a registration statement on Form S-3 such form as is then available to the Company (the “Registration Statement”) to enable the resale of the Conversion Shares by the Investors from time to time through the automated quotation system of the Nasdaq National Market OTC Bulletin Board or in privately-negotiated transactions;
(b) use its commercially reasonable efforts, subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statementeffective;
(c) use its best commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Preferred Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Conversion Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Conversion Shares purchased acquired by such Investor through the sale of Preferred Shares in this Offering have been sold pursuant to a registration statement;
(d) furnish (which may be furnished electronically) to the Investor with respect to the Conversion Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses prospectuses and Preliminary Prospectuses preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Conversion Shares by the Investor; provided, however, that the obligation of the Company to deliver copies of Prospectuses prospectuses or Preliminary Prospectuses 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 prospectuses or Preliminary Prospectusespreliminary prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c8.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) 8.1 and the registration of the Conversion Shares pursuant to the Registration StatementStatement except with respect to any legal or attorney fees incurred by any of the Investors in connection with the Registration Statement and any amendments thereto; and
(g) advise the InvestorInvestor (which advisement may occur electronically), 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 best 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review may include on the Registration Statement; shares of Common Stock of the Registration Statement Company for resale by certain other stockholders of the SEC staffCompany, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided and that following receipt of notice of such review, the Company shall have used its best efforts to cause may file a subsequent registration statement for the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter resale of shares of Common Stock by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing certain other stockholder of the Registration Statement with the SECCompany.
Appears in 1 contract
Registration Procedures and Other Matters. (a) The Company shall:
(ai) subject to receipt of necessary information from as soon as possible but in any event not later than the Investor after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 days 45th day after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day), file a registration statement on Form S-3 (or, if Form S-3 is not then available, on such form of registration statement as is then available to effect a registration of the “Registration Statement”Shares and Warrant Shares) to enable the resale of the Shares and the Warrant Shares by the Investors Subscribers from time to time through (the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions"Registration Statement");
(bii) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, use its best commercially reasonable efforts to cause a Registration Statement to be declared effective by the SEC as soon as possible, but in any event not later than the earlier of (a) the 120th day following the Closing Date, and (b) the fifth trading day following the date on which the Company is notified by the SEC that the Registration Statement will not be reviewed or is no longer subject to become effective within 45 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing further review and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statementcomments;
(ciii) use its best commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “"Prospectus”") as may be necessary to keep the Registration Statement continuously current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investorthe Subscriber’s Shares and Warrant Shares purchased hereunderhereunder from the date it is first declared effective until, the earlier of (iA) two years from the second anniversary date of the Closing Datefinal exercise of all of the Warrants, (iiB) the date on which the Investor Subscriber may sell all Shares and Warrant Shares then held by the Investor Subscriber pursuant to Rule 144 without any restriction by as to the volume limitations number of Rule 144(e) securities as of the Securities Acta particular date that can then be immediately sold, or (iiiC) the public sale of all of the Shares and the Warrant Shares (such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statementperiod, the "Effectiveness Period");
(div) if (A) the Registration Statement is not filed on or prior to the date of filing required pursuant to Section 9.1(a)(i), (B) the Registration Statement is not declared effective on or prior to the date required by Section 9.1(a)(ii), or (C) notwithstanding Section 9.2, after the date first declared effective by the SEC and prior to the expiration of the Effectiveness Period, the Registration Statement ceases to be effective and available to each Subscriber as to its Shares and Warrant Shares (whether pursuant to Section 9.2(c), or otherwise) without being succeeded within 20 trading days by an effective amendment thereto or by a subsequent registration statement filed with and declared effective by the SEC, (any such failure being referred to as an "Event" and the date of such failure being the "Event Date"), then, in addition to any other rights available to the Subscriber under this Agreement or applicable law: (w) on the failure by the Company to comply with the Event required pursuant to Section 9.1(a)(i) the Company shall pay to the Subscriber an amount in cash, as liquidated damages and not as a penalty, equal to two percent of the Subscription Price paid by the Subscriber and on each monthly anniversary of such Event Date (if the Event has not been cured by such date) until the applicable Event is cured, the Company shall pay to the Subscriber a further amount in cash, as liquidated damages and not as a penalty, equal to two percent of the Subscription Price paid by the Subscriber; (x) on the failure by the Company to comply with the Event required pursuant to Section 9.1(a)(ii) or the occurrence of the Event set forth in Section 9.1(a)(iv)(C) and on each monthly anniversary of such Event Dates (if the Event has not been cured by such date) until the applicable Event is cured, an amount shall accrue and be payable by the Company to the Subscriber, as liquidated damages and not as a penalty, equal to two percent of the Subscription Price paid by the Subscriber; (y) provided however that if the foregoing Events set forth in (x) is cured by the Company within 90 days of the applicable Event Date, all liquidated damages that have accrued and are due D/WLM/683339.2 and owing by the Company to the Subscriber shall be payable in Units (to be registered in accordance with the terms of this Agreement), as liquidated damages and not as a penalty; and (z) if an Event is not cured within 90 days of the applicable Event Date, all liquidated damages that have accrued and are owed and continue to accrue to the Subscriber shall be paid in cash, and any liquidated damages that accrue after one year from the Closing Date shall not exceed six percent of the Subscription Price paid by the Subscriber. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event;
(v) furnish to the Investor Subscriber with respect to the Shares and the Warrant Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities 1933 Act and such other documents as the Investor Subscriber may reasonably request in writing, in order to facilitate the public sale or other disposition of all or any of the Shares or Warrant Shares by the InvestorSubscriber; provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor Subscriber shall be subject to the receipt by the Company of reasonable assurances from the Investor Subscriber that the Investor Subscriber will comply with the applicable provisions of the Securities 1933 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;
(evi) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor Subscriber and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c9.1(a)(iii); 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;
(fvii) bear all expenses in connection with the procedures in paragraph (ai) through (evi) of this Section 7.1 9.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the InvestorSubscriber, including attorneys’ fees) and the registration of the Shares pursuant to the Registration Statement); and
(gviii) advise the Investor, Subscriber 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 or threat of any proceeding for that purpose; and it will promptly use its best 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. .
(b) Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the SharesShares and the Warrant Shares and such other securities issued by the Company subject to registration rights. In no event at any time before the Registration Statement becomes effective with respect to the Shares and Warrant Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or registrations for transactions covered other securities issued by Rule 145 of the Securities ActCompany subject to registration rights, without the prior written consent of a majority 66-2/3% in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SECSubscribers.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Eden Energy Corp)
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors Investor to provide such information, prepare and file with the SEC, within 10 45 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)Date, a registration statement on Form S-3 (the “Registration Statement”) to enable the resale of the Shares shares of Common Stock sold in the Offering and the shares of Common Stock underlying the Warrants (collectively the “Registrable Securities”) by the Investors from time to time through a securities exchange, the automated quotation system of the Nasdaq National Market or Nasdaq Capital Markets, in the Over-the-Counter Bulletin Board, the Pink Sheets or in privately-negotiated transactions;
(b) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors Investor to provide such information, use its best reasonable commercial efforts to cause the Registration Statement to become effective within 45 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed on or prior to the effectiveness of such Registration Statement150th day after the Closing Date (the “Effective Date”);
(c) use its best reasonable commercial efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus Prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares purchased hereunderRegistrable Securities , the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares the Registrable Securities then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iiiii) such time as all Shares the Registrable Securities purchased by such Investor in this Offering have been sold pursuant to a registration statement. Notwithstanding the foregoing, if any Investor is not able to immediately, freely resell all Registrable Securities that it owns, the Company will continue to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for such period as is necessary;
(d) furnish to the Investor with respect to the Shares Registrable Securities registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, 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 and use its best reasonable commercial efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c10.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 10.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ feesattorney fees of the Investor) and the registration of the Shares Registrable Securities pursuant to the Registration Statement; and
(g) advise the 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 best reasonable commercial 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the SharesRegistrable Securities and certain other securities of the Company issuable in connection with the private offering of debt securities during the period commencing July 2005 and ending September 2005, the Agent Warrants and securities to be issued to the stockholders of Wentworth in the Merger. In no event at any time before the Registration Statement becomes effective with respect to the Shares Registrable Securities shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities ActS-8, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but if the SEC deems the Investor being deemed to be an underwriter by the SEC Company shall not relieve the Company be relieved of any obligations it has hereunder; provided, however, however that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SEC. The Plan of Distribution section of the Registration Statement shall be approved by the Placement Agent on behalf of the Investors whose Registrable Securities are to be included in the Registration Statement. If the Placement Agent, after being provided a copy of the Registration Statement as to be filed, does not respond or make comments to the Plan of Distribution section within five business days, then the form of Plan of Distribution as submitted shall be deemed approved.
Appears in 1 contract
Samples: Subscription Agreement (AeroGrow International, Inc.)
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor after prompt request from the Company Investors, use its reasonable efforts to the Investors to provide such information, prepare and file with the SEC, within 10 business days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)Date, a registration statement on Form S-3 (the “"Registration Statement”") to enable the resale of the Shares by the Investors from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions;
(b) file its audited financial statements in the form required by the Securities and Exchange Commission for the fiscal year ended December 31, 1999 with the SEC no later than February 29, 2000 and include them in the Registration Statement if the inclusion of such audited financial statements is a condition to the effectiveness of the Registration Statement;
(c) use its reasonable efforts, subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such informationInvestors, use its best efforts to cause the Registration Statement to become effective within 45 90 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(cd) use its best reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus Prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, current and effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s 's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;.
(de) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, 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;
(ef) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor and use its best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c)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;
(fg) bear all expenses in connection with the procedures in paragraph (a) through (ef) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares pursuant to the Registration Statement; and
(gh) advise the InvestorInvestors, 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 best 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; providedPROVIDED, however, HOWEVER that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 60 calendar days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day“Registration Statement Filing Date”), a registration statement on Form S-3 S-3, or other appropriate form if the Company is not then eligible to use Form S-3, (the “Registration Statement”) ), to enable the resale of the Shares Registrable Securities by the Investors from time to time through the automated quotation system of the Nasdaq National Capital Market (or any other securities exchange, interdealer quotation system or other market on which the Common Stock is traded) or in privately-negotiated transactionstransactions pursuant to Rule 415 of the Securities Act;
(b) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, use its best commercially reasonable efforts to cause the Registration Statement to become effective within 45 60 days after the Registration Statement Filing Date (unless the Registration Statement is filed reviewed by the CompanySEC, then within 90 days) (such 60 or 90 day period, as applicable, the “Registration Statement Effectiveness Date”), such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period prior to the Registration Statement Effectiveness Date, any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c) use its best commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus Prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, continuously effective and free from any material misstatement or omission to state a material fact for a period (the “Effectiveness Period”) not exceeding, with respect to each Investor’s Shares purchased hereunderRegistrable Securities, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares Registrable Securities then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased Registrable Securities held by such Investor in this Offering have been sold pursuant to a registration statement;
(d) if at any time during the Effectiveness Period, less than 95% of the then outstanding Registrable Securities are then registered pursuant to a Registration Statement filed pursuant to clause (a) above, then (x) the Company shall file as soon as reasonably practicable, but in any case within 30 days following the event resulting in less than 95% of the then outstanding Registrable Securities being so registered (the “Additional Registration Statement Filing Date”), an additional Registration Statement conforming with the requirements of this Section 7.1 covering the resale by the Holders of not less than 100% of the number of then Registrable Securities, (y) use its best efforts to cause such additional Registration Statement to become effective within 60 days after the Additional Registration Statement Filing Date (unless such additional Registration Statement is reviewed by the SEC, then within 90 days) (such 60 or 90 day period, as applicable, the “Additional Registration Statement Effectiveness Date”), such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC prior to the Additional Registration Statement Effectiveness Date, any financial statements that are required to be filed prior to the effectiveness of such additional Registration Statement, and (z) use its best efforts to cause such additional Registration Statement to remain current, continuously effective and free from any material misstatement or omission to state a material fact during the entire Effectiveness Period;
(e) furnish to the Investor with respect to the Shares Registrable Securities registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, 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;
(ef) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor and use its best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); 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) use its commercially reasonable efforts to comply in all material respects with the provisions of the Securities Act and the Exchange Act, together with the rules and regulations promulgated thereunder, with respect to the Registration Statement and the disposition of all Registrable Securities covered thereby;
(h) use its commercially reasonable efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any stop order or other order suspending the effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(i) provide a transfer agent and registrar for all Registrable Securities subject to a Registration Statement.
(j) if requested by the Investors, cooperate with the Investors to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to the Registration Statements, which certificates shall be free of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Investors may request.
(k) provide a copy of any Registration Statement and any amendments or supplements thereto and the Company shall notify the Holders’ Counsel and each seller of Registrable Securities of any stop order issued or threatened by the SEC;
(l) obtain one or more comfort letters, dated the effective date of such Registration Statement (and, if such registration includes an underwritten offereing, dated the closing date of the closing under the underwriting agreement), signed by the Company’s independent public accountants in customary form and covering such matters of the type customarily covered by comfort letters as the holders of a majority of the Registrable Securities being sold reasonably request;
(m) provide a legal opinion of the Company’s outside counsel, dated the effective date of such Registration Statement (and, if such registration includes an underwritten offering, dated the date of the closing under the underwriting agreement), with respect to the Registration Statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature;
(n) bear all expenses in connection with the procedures in paragraph (a) through (em) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares Securities pursuant to the Registration Statement; and
(g) advise the 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 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such informationInvestors, prepare and file with the SEC, within 10 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day), SEC a registration statement on Form S-1 or Form S-3 (or another form appropriate for such registration in accordance herewith) (the “Registration Statement”"REGISTRATION STATEMENT") to enable the resale of the Shares and the Warrant Shares by the Investors from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions;
(b) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, transactions and use its best commercially reasonable efforts to cause the Registration Statement to become effective within 45 120 days after the Registration Statement is filed by the Company, Company (the "EFFECTIVENESS DEADLINE") such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45120-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(cb) use its best commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “Prospectus”"PROSPECTUS") as may be necessary to keep maintain the Registration Statement Statement, subject to customary blackout periods, current, effective and free from any material misstatement or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and to maintain the listing of the Company's Common Stock on the Nasdaq National Market, for a period not exceeding, with respect to each Investor’s Shares purchased hereunder, the earlier of (i) (A) with respect to each Investor's Shares purchased hereunder, two years after the second anniversary of applicable Closing Date at which such Shares were purchased by the Investor, and (B) with respect to each Investor's Warrant Shares purchased under the Warrant, three years after the applicable Closing DateDate at which such Warrant was purchased by the Investor, or (ii) with respect to each Investor's Shares purchased hereunder and Warrant Shares purchased under the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities ActWarrant, or (iii) such time as all Shares purchased by such Investor in this Offering and Warrant Shares issuable pursuant to the Warrant have been sold pursuant to a registration statement;
(dc) furnish to the Investor with respect to the Shares and Warrant Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, 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 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 states specified in writing by the Investor and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c7.1(b); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(fe) bear all expenses in connection with the procedures in paragraph (a) through (ed) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ ' fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ ' fees) and the registration of the Shares and Warrant Shares pursuant to the Registration Statement; and
(gf) advise the 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 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares and the Warrant Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares and the Warrant Shares shall the Company publicly announce or file any other registration statementstatement not covering the Shares and Warrant Shares, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities ActS-8, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of If the Registration Statement by the SEC staffinitially filed pursuant to this Agreement is a registration statement on Form S-1, the Registration Statement does not become effective Company shall, within 45 10 days after the Registration Statement is filed with Company first becomes eligible to file a registration statement on Form S-3, use its commercially reasonable efforts to seek the SEC, provided that following receipt of notice conversion of such review, the Company shall have used its best efforts to cause the Registration Statement to become a registration statement on Form S-3 (through a post-effective at amendment or otherwise), and the earliest practicable dateInvestor shall promptly provide such information as may reasonably be requested by the Company in connection with such conversion and to otherwise cooperate with the Company in connection with such conversion to the extent reasonably requested by the Company. The Company understands that the Investor disclaims being an underwriter, but if the SEC deems the Investor being deemed to be an underwriter by underwriter, the SEC Company shall not relieve the Company be relieved of any obligations it has hereunder; provided, however, however that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Samples: Stock and Warrant Purchase Agreement (Acusphere Inc)
Registration Procedures and Other Matters. (a) The Company shall:
(ai) subject to receipt of necessary information from as soon as possible but in any event not later than the Investor after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 days 45th day after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day), file a registration statement on Form S-3 (or, if Form S-3 is not then available, on such form of registration statement as is then available to effect a registration of the “Registration Statement”Shares and Warrant Shares) to enable the resale of the Shares and the Warrant Shares by the Investors Subscribers from time to time through (the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions"Registration Statement");
(bii) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, use its best commercially reasonable efforts to cause a Registration Statement to be declared effective by the SEC as soon as possible, but in any event not later than the earlier of (a) the 120th day following the Closing Date, and (b) the fifth trading day following the date on which the Company is notified by the SEC that the Registration Statement will not be reviewed or is no longer subject to become effective within 45 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing further review and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statementcomments;
(ciii) use its best commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “"Prospectus”") as may be necessary to keep the Registration Statement continuously current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investorthe Subscriber’s Shares and Warrant Shares purchased hereunderhereunder from the date it is first declared effective until, the earlier of (iA) two years from the second anniversary date of the Closing Datefinal exercise of all of the Warrants, (iiB) the date on which the Investor Subscriber may sell all Shares and Warrant Shares then held by the Investor Subscriber pursuant to Rule 144 without any restriction by as to the volume limitations number of Rule 144(e) securities as of the Securities Acta particular date that can then be immediately sold, or (iiiC) the public sale of all of the Shares and the Warrant Shares (such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statementperiod, the "Effectiveness Period");
(div) if (A) the Registration Statement is not filed on or prior to the date of filing required pursuant to Section 9.1(a)(i), (B) the Registration Statement is not declared effective on or prior to the date required by Section 9.1(a)(ii), or (C) notwithstanding Section 9.2, after the date first declared effective by the SEC and prior to the expiration of the Effectiveness Period, the Registration Statement ceases to be effective and available to each Subscriber as to its Shares and Warrant Shares (whether pursuant to Section 9.2(c), or otherwise) without being succeeded within 20 trading days by an effective amendment thereto or by a subsequent registration statement filed with and declared effective by the SEC, (any such failure being referred to as an "Event" and the date of such failure being the "Event Date"), then, in addition to any other rights available to the Subscriber under this Agreement or applicable law: (w) on the failure by the Company to comply with the Event required pursuant to Section 9.1(a)(i) the Company shall pay to the Subscriber an amount in cash, as liquidated damages and not as a penalty, equal to two percent of the Subscription Price paid by the Subscriber and on each monthly anniversary of such Event Date (if the Event has not been cured by such date) until the applicable Event is cured, the Company shall pay to the Subscriber a further amount in cash, as liquidated damages and not as a penalty, equal to two percent of the Subscription Price paid by the Subscriber; (x) on the failure by the Company to comply with the Event required pursuant to Section 9.1(a)(ii) or the occurrence of the Event set forth in Section 9.1(a)(iv) (C) and on each monthly anniversary of such Event Dates (if the Event has not been cured by such date) until the applicable Event is cured, an amount shall accrue and be payable by the Company to the Subscriber, as liquidated damages and not as a penalty, equal to two percent of the Subscription Price paid by the Subscriber; (y) provided however that if the foregoing Events set forth in (x) is cured by the Company within 90 days of the applicable Event Date, all liquidated damages that have accrued and are due and owing by the Company to the Subscriber shall be payable in Units (to be registered in accordance with the terms of this Agreement), as liquidated damages and not as a penalty; and (z) if an Event is not cured within 90 days of the applicable Event Date, all liquidated damages that have accrued and are owed and continue to accrue to the Subscriber shall be paid in cash, and any liquidated damages that accrue after one year from the Closing Date shall not exceed six percent of the Subscription Price paid by the Subscriber. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event;
(v) furnish to the Investor Subscriber with respect to the Shares and the Warrant Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities 1933 Act and such other documents as the Investor Subscriber may reasonably request in writing, in order to facilitate the public sale or other disposition of all or any of the Shares or Warrant Shares by the InvestorSubscriber; provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor Subscriber shall be subject to the receipt by the Company of reasonable assurances from the Investor Subscriber that the Investor Subscriber will comply with the applicable provisions of the Securities 1933 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;
(evi) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor Subscriber and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c9.1(a)(iii); 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;
(fvii) bear all expenses in connection with the procedures in paragraph (ai) through (evi) of this Section 7.1 9.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the InvestorSubscriber, including attorneys’ fees) and the registration of the Shares pursuant to the Registration Statement); and
(gviii) advise the Investor, Subscriber 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 or threat of any proceeding for that purpose; and it will promptly use its best 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. .
(b) Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the SharesShares and the Warrant Shares and such other securities issued by the Company subject to registration rights. In no event at any time before the Registration Statement becomes effective with respect to the Shares and Warrant Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or registrations for transactions covered other securities issued by Rule 145 of the Securities ActCompany subject to registration rights, without the prior written consent of a majority 66-2/3% in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SECSubscribers.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Eden Energy Corp)
Registration Procedures and Other Matters. The Company shall:
(ai) subject to receipt of necessary the information from the Investor Subscriber contained in Exhibit Y hereto, after prompt request from the Company to the Investors Subscriber to provide such information, within thirty (30) days of the Closing Date (the “Filing Deadline”), prepare and file with the SEC, within 10 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day), SEC a registration statement on Form S-3 F-3, Form F-1 or Form F-10 or other applicable form (the “Registration Statement”) to enable the resale of the Common Shares and the Additional Common Shares (referred to together, for the purposes of this Article V only, as the “Common Shares”) by the Investors Subscriber from time to time through the automated any quotation system of on which the Nasdaq National Market Common Shares are quoted or listed, if applicable, or in privately-negotiated transactionstransactions and in accordance with the Plan of Distribution attached hereto as Exhibit Z;
(bii) use its best efforts, subject to receipt of necessary information from the Investor Subscriber after prompt request from the Company to the Investors Subscriber to provide such information, information (provided that failure on the part of any one Subscriber under the Offering shall not relieve the Company from its obligation to use its best efforts with respect to complying Subscribers), to cause the Registration Statement to become effective within 45 on or before the date that is 90 days after the date of filing of such Registration Statement; the date the Registration Statement is filed initially declared effective by the Company, SEC is referred to herein as the “Effective Date”; such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c; and, in the event that the filing referred to in Section 5.2(a)(i) above is on a form other than Form F-3, the Company shall use its best efforts efforts, subject to receipt of necessary information from the Subscriber after prompt request from the Company to the Subscriber to provide such information, to prepare and file with the SEC such amendments and supplements SEC, within 10 days after the Company first becomes eligible to the Registration Statement and the prospectus used in connection therewith file a registration statement on Form F-3, a registration statement on Form F-3 (the “ProspectusF-3 Registration Statement”) as may be necessary to keep enable the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares purchased hereunder, the earlier of (i) the second anniversary resale of the Closing Date, (ii) Common Shares by the date Subscriber from time to time through any quotation system on which the Investor may sell all Common Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, are quoted or (iii) such time as all Shares purchased by such Investor listed or in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writing, 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 and use its best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the 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 purposeprivately-negotiated transactions; and it will promptly to use its 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the F-3 Registration Statement to become effective at as soon as practicable thereafter, such efforts to include, without limiting the earliest generality of the foregoing, preparing and filing with the SEC as promptly as practicable date. The Company understands any financial statements that are required to be filed prior to the Investor disclaims being an underwriter, but effectiveness of such F-3 Registration Statement (the Investor being deemed an underwriter term “Registration Statement” shall mean the F-1 Registration Statement until the F-3 Registration Statement is declared effective by the SEC SEC, after which time it shall not relieve mean 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 F-3 Registration Statement with the SEC.Statement);
Appears in 1 contract
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 not later than thirty (30) days from and after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day“Filing Date”), a registration statement on Form S-3 or such other successor form (except that if the Company is not then eligible to register for resale the Registrable Securities (as defined below) on Form S-3, in which case such registration shall be on Form S-1 or any successor form) (the “Registration Statement”) to enable the resale of the Shares and the Shares issuable upon exercise of the Warrant (together, the “Registrable Securities”) by the Investors from time to time through the automated Nasdaq quotation system of the Nasdaq National Market or in other privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 days 90 days, if there is no review, and 120 days, if there is a review, after the Registration Statement is filed by the CompanyCompany(the “Effectiveness Date”), such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares Registrable Securities purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor Investors may sell all Shares Registrable Securities then held by the Investor Investors without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares Registrable Securities purchased by such Investor the Investors in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor Investors with respect to the Shares Registrable Securities registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses prospectuses and Preliminary Prospectuses preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor Investors may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Shares Registrable Securities by the InvestorInvestors; provided, however, that the obligation of the Company to deliver copies of Prospectuses prospectuses or Preliminary Prospectuses preliminary prospectuses to the Investor Investors shall be subject to the receipt by the Company of reasonable assurances from the Investor Investors that the Investor Investors will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses prospectuses or Preliminary Prospectusespreliminary prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor Investors and use its reasonable best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); 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) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission under the Securities Act and the Exchange Act, and take such other actions as may be reasonably necessary to facilitate the registration of the Registrable Securities hereunder;
(g) bear all expenses of Company in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares Registrable Securities pursuant to the Registration Statement; and;
(gh) advise the InvestorInvestors, 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 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. Notwithstanding anything to the contrary herein, ; and
(i) if: (i) the Registration Statement is not filed on or prior to the Filing Date in violation of this Agreement, or (ii) the Registration Statement filed hereunder is not declared effective by the SEC on or before the Effectiveness Date, or (iii) the Company fails to file with the SEC a request for acceleration within five (5) business days of the date that the Company is notified by the SEC that the Registration Statement will not be “reviewed,” or is not subject to further review, or (iv) after the Registration Statement is first declared effective by the SEC, it ceases for any reason to remain continuously effective as to all Registrable Securities for which it is required to be effective or the Investors are not permitted to utilize the prospectus therein to resell such Registrable Securities, other than, in each case, within the time limits permitted by Sections 7.2(d), (any such failure or breach being referred to as an “Event”), then in addition to any other rights the Investors may have hereunder or under applicable law: (x) on each such Event date the Company shall cover only pay to each Investor an amount in cash, as liquidated damages and not as a penalty, equal to 1.5% of the Sharesaggregate purchase price paid by such Investor pursuant to the Agreement for any Registrable Securities then held by such Investor; and (y) on each monthly anniversary of each such Event (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Investor an amount in cash, as liquidated damages and not as a penalty, equal to 1.5% of the aggregate purchase price paid by such Investor pursuant to the Agreement for any Registrable Securities then held by such Investor. If the Company fails to pay any liquidated damages pursuant to this Section in full within seven (7) business days after the date payable, the Company will pay interest thereon at a rate of 10% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Investors, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. With a view to making available to the 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 Investors to sell Registrable Securities to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the 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 Investors’ Registrable Securities shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Exchange Act; and (iii) furnish to the Investors upon request, as long as the Investors owns any Registrable Securities, (A) a written statement by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act; (B) a copy of the Company’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investors of any rule or regulation of the SEC that permits the selling of such Registrable Securities without registration. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Actand Post Effective Amendment No. 1 to Form S-1 on Form S-3, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims Investors disclaim being an underwriterunderwriters, but the an Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 30 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)Date, a registration statement on Form S-3 S-1 (the “S-1 Registration Statement”) to enable the resale of the Shares and the Warrant Shares by the Investors from time to time through in compliance with the automated quotation system of the Nasdaq National Market or in privately-negotiated transactionsSecurities Act;
(b) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the S-1 Registration Statement to become effective within 45 105 days after the Registration Statement is filed by the Company, Closing Date such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such S-1 Registration Statement;
(c) ; and the Company shall use its best efforts efforts, subject to receipt of necessary information from the Investors after prompt request from the Company to the Investors to provide such information, to prepare and file with the SEC such amendments and supplements SEC, within 30 days after the Company first becomes eligible to file a registration statement on Form S-3 (or an amendment to the Registration Statement and the prospectus used in connection therewith on Form S-3) (the “ProspectusS-3 Registration Statement”) as may be necessary to keep enable the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares purchased hereunder, the earlier of (i) the second anniversary resale of the Closing Date, (ii) Shares and the date on which the Investor may sell all Warrant Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of Investors from time to time in compliance with the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writing, 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 and use its best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the 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 to use its 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the S-3 Registration Statement to become effective at as soon as practicable thereafter, such efforts to include, without limiting the earliest generality of the foregoing, preparing and filing with the SEC as promptly as practicable date. The Company understands any financial statements that are required to be filed prior to the Investor disclaims being an underwriter, but effectiveness of such S-3 Registration Statement (the Investor being deemed an underwriter term “Registration Statement” shall mean the S-1 or S-2 Registration Statement until the S-3 Registration Statement is declared effective by the SEC SEC, after which time it shall not relieve mean 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 S-3 Registration Statement with the SECStatement).
Appears in 1 contract
Samples: Stock and Warrant Purchase Agreement (Inhibitex Inc)
Registration Procedures and Other Matters. The Company shall:: -----------------------------------------
(a) subject to receipt of necessary information from the each Investor after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 30 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)Date, a registration statement on Form S-3 SB-2, or on such other appropriate form as may be determined by counsel for the Company (the “"Registration Statement”") to enable the resale of the Shares by the Investors each Investor from time to time through on the automated quotation system of the Nasdaq National Principal Market or in privately-negotiated transactions;
(b) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use its best reasonable commercial efforts to cause the Registration Statement to become effective within 45 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed on or prior to the effectiveness of such Registration Statement90th day after the Closing Date;
(c) use its best reasonable commercial efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus Prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares purchased hereunder, exceeding the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the each Investor may sell all Shares then held by the such Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to the each Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor Investors may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Shares by the InvestorInvestors; 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 each Investor that the Investor Investors 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 each Investor and use its best reasonable commercial efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ ' fees and similar selling expenses, and any other fees or expenses incurred by the InvestorInvestors, including attorneys’ feesattorney fees of the Investor) and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the InvestorInvestors, 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 best reasonable commercial 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. Notwithstanding anything to the contrary herein, the The Registration Statement shall cover only the Sharesresale of the Shares by each Investor, but not the Units or the Warrants as separate securities. The Registration Statement shall also cover, for resale by other selling shareholders, (i) approximately 1,300,000 shares of Common Stock that may be issued pursuant to a concurrent private placement; (ii) 1,740,336 shares of Common Stock currently outstanding; and (iii) 1,816,956 shares of Common Stock underlying warrants, all for resale by other selling shareholders whom the Company had previously granted registration rights. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities ActS-8, without the prior written consent of a majority in interest of the Total Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims Investors disclaim being an underwriter, but if the SEC deems any Investor being deemed to be an underwriter by the SEC Company shall not relieve the Company be relieved of any obligations it has hereunder; provided, however, however that if the -------- ------- Company receives notification from the SEC that the such Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended 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: Securities Purchase Agreement (Integral Technologies Inc /Cn/)
Registration Procedures and Other Matters. The Company Parent shall:
(a) subject to receipt of necessary information from the Investor Purchasers after prompt request from the Company Parent to the Investors Purchasers to provide such information, no later than the 30th day following the Trigger Date (the "Filing Date"), prepare and file with the SEC, within 10 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day), Commission a registration statement on Form S-3 or such other successor form (except that if Parent is not then eligible to register for resale the “Exchange Shares on Form S-3, in which case such registration shall be on Form S-1 or any successor form) (a "Registration Statement”") to enable the resale of the Shares Exchange Shares, by the Investors Purchasers or their transferees from time to time through over the automated quotation system of the Nasdaq National Market AMEX or any other national exchange on which Parent's Common Stock is then traded, or in privately-negotiated transactions. No Purchaser may include any Exchange Shares in the Registration Statement pursuant to this Agreement unless such Purchaser furnishes to Parent in writing within ten (10) business days after receipt of request therefor, such requested information;
(b) use its commercially reasonable efforts, subject to receipt of necessary information from the Investor Purchasers after prompt request from the Company Parent to the Investors Purchasers to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 days after prior to the 120th day following the Trigger Date; provided, however, that if Parent has filed the Registration Statement is filed by the Company, such efforts to include, without limiting Filing Date and the generality of Commission has not declared the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed Registration Statement effective prior to the effectiveness date that is specified in Rule 3-12 of such Registration StatementRegulation S-X promulgated by the Commission, then the time period for becoming effective shall be extended to the 180th day following the Trigger Date (the "Effectiveness Date");
(c) use its best commercially reasonable efforts to cause such Registration Statement to remain continuously effective and prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “"Prospectus”") (and the applicable Exchange Act reports incorporated therein by reference, so filed on a timely basis) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceedingending on the date that is, with respect to each Investor’s Purchaser's Exchange Shares purchased hereunder, the earlier of of
(i) the second anniversary of the Closing Date, (ii) the date on which the Investor Purchaser may sell all Exchange Shares then held by the Investor Purchaser without restriction by the volume limitations of under Rule 144(e) of the Securities Act144(k), or (iiiii) such time as all Exchange Shares purchased received by such Investor in Purchaser pursuant to this Offering Agreement have been sold or otherwise transferred pursuant to a registration statementstatement or otherwise;
(d) so long as a Purchaser holds Exchange Shares received pursuant to this Agreement, provide copies to and permit single legal counsel designated by the Purchasers to review the Registration Statement and all amendments and supplements thereto, no fewer than three (3) business days prior to their filing with the Commission, and not file any Registration Statement, amendment or supplement thereto to which a holder of the Exchange Shares reasonably objects in writing within such three (3) business day period;
(e) furnish to the Investor Purchasers with respect to the Exchange Shares registered under included in the Registration Statement such number of copies of the Registration Statement, Prospectuses and preliminary Prospectuses ("Preliminary Prospectuses Prospectuses" and individually, "Preliminary Prospectus") in conformity with the requirements of the Securities Act and such other documents as the Investor Purchasers may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Exchange Shares by the InvestorPurchasers; provided, however, that the obligation of the Company Parent to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor Purchasers shall be subject to the receipt by the Company Parent of reasonable assurances from the Investor Purchasers that the Investor Purchasers will comply with the applicable provisions of prospectus delivery requirements under 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;
(ef) file documents required of the Company Parent for normal customary blue sky clearance in states specified in writing by the Investor Purchasers and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company Parent is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company Parent shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(fg) bear all expenses in connection promptly notify the Purchasers after it receives notice of the time when the Registration Statement has been declared effective by the Commission, or when a supplement or amendment to any Registration Statement has been filed with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares pursuant to the Registration Statement; andCommission;
(gh) advise the InvestorPurchasers, promptly promptly: (i) after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC Commission 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 best 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event ; and (ii) at any time before the Registration Statement becomes effective with respect when a Prospectus relating to the Exchange Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of is required to be delivered under the Securities Act, without upon discovery that, or upon the prior written consent happening of an event as a result of which, the Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a majority material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in interest light of the Investors. The Investor acknowledges circumstances then existing;
(i) upon request and agrees that subject to appropriate confidentiality obligations, furnish to each Purchaser copies of any and all transmittal letters or other correspondence with the Company shall not be regarded Commission or any other governmental agency or self-regulatory body or other body having jurisdiction (including any domestic or foreign securities exchange) relating to have breached its “best efforts” obligation under Section 7.1(bsuch offering of Exchange Shares;
(j) ifin the case of an Underwritten Offering, owing to a review furnish upon request, (i) an opinion of counsel for Parent dated the effective date of the Registration Statement applicable registration statement or the date of any amendment or supplement thereto, and a letter of like kind dated the date of the closing under the underwriting agreement, and (ii) a "cold comfort" letter, dated the date of the applicable registration statement or the date of any amendment or supplement thereto and a letter of like kind dated the date of the closing under the underwriting agreement, in each case, signed by the SEC staffindependent public accountants who have certified Parent's financial statements included or incorporated by reference into the applicable registration statement, and each of the Registration Statement does not become effective within 45 days after opinion and the Registration Statement is filed "cold comfort" letter shall be in customary form and covering substantially the same matters with respect to such registration statement (and the SEC, provided that following receipt prospectus and any prospectus supplement included therein) as are customarily covered in opinions of notice issuer's counsel and in accountants' letters delivered to the underwriters in Underwritten Offerings of securities and such review, the Company shall have used other matters as such underwriters or Purchasers may reasonably request;
(k) otherwise use its best commercially reasonable efforts to cause comply with all applicable rules and regulations of the Registration Statement Commission, and make available to become effective at its security holders, as soon as reasonably practicable, an earnings statement, which earnings statement shall satisfy the earliest practicable date. The Company understands that provisions of Section 11(a) of the Investor disclaims being an underwriter, but Securities Act and Rule 158 promulgated thereunder;
(l) make available to the Investor being deemed an appropriate representatives of the managing underwriter by and Purchasers access to such information and Parent personnel as is reasonable and customary to enable such parties to establish a due diligence defense under the SEC shall not relieve the Company of any obligations it has hereunderSecurities Act; provided, however, that Parent need not disclose any such information to any such representative unless and until such representative has entered into or is otherwise subject to a confidentiality agreement with Parent satisfactory to Parent; and
(m) cause all the Exchange Shares registered pursuant to this Agreement to be listed on each securities exchange or nationally recognized quotation system on which similar securities issued by Parent are then listed. Parent agrees that, if any Purchaser could reasonably be deemed to be an "underwriter", as defined in Section 2(a)(11) of the Company receives notification from Securities Act, in connection with the SEC that the Investor is deemed an underwriterregistration statement in respect of any registration of Exchange Shares of any Purchaser pursuant to this Agreement, and any amendment or supplement thereof (any such registration statement or amendment or supplement a "Purchaser Underwriter Registration Statement"), then Parent will cooperate with such Purchaser in allowing such Purchaser to conduct customary "underwriter's due diligence" with respect to Parent and satisfy its obligations in respect thereof. In addition, at any Purchaser's request, Parent will furnish to such Purchaser, on the period by which date of the Company is obligated effectiveness of any Purchaser Underwriter Registration Statement and thereafter from time to submit an acceleration request to the SEC shall be extended to the earlier of time on such dates as such Purchaser may reasonably request, (i) the 90th day after a letter, dated such SEC notificationdate, or from Parent's independent certified public accountants in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to such Purchaser, and (ii) 120 days after the initial filing an opinion, dated as of the such date, of counsel representing Parent for purposes of such Purchaser Underwriter Registration Statement, in form, scope and substance as is customarily given in an underwritten public offering, including standard "10b-5" assurances for such offering, addressed to such Purchaser. Parent will also permit legal counsel to such Purchaser to review and comment upon any such Purchaser Underwriter Registration Statement at least five (5) business days prior to its filing with the SECCommission and all amendments and supplements to any such Purchaser Underwriter Registration Statement within a reasonable number of days prior to their filing with the Commission and not file any Purchaser Underwriter Registration Statement or amendment or supplement thereto in a form to which such Purchaser's legal counsel reasonably objects.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Abraxas Energy Partners LP)
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt Within twenty 20 business days following the later of necessary information from (i) the Investor filing of the Certificate Amendment, or (ii) the filing of the Company’s next required Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as applicable, after prompt request from Closing, the Company to the Investors to provide such information, shall prepare and file with the SEC, within 10 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day), SEC a registration statement on Form S-3 such form as is then available to the Company (the “Registration Statement”) to enable the resale of the Conversion Shares and any Common Warrant Shares (referred to collectively herein as, the “Registrable Securities”) by the Investors from time to time through the automated quotation system of the Nasdaq National Market OTC Bulletin Board or in privately-negotiated transactionstransactions or through the facilities of any securities exchange or securities trading platform through which the Common Stock is traded, quoted or otherwise included for offer or sale, subject to any limits on the amount of Registrable Securities included on the Registration Statement required by the SEC;
(b) use its reasonable commercial efforts, subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors Investor to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statementeffective;
(c) use its best reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares Securities purchased hereunder, the earlier of the date that (i) all Registrable Securities covered by such Registration Statement have been sold, (ii) all Registrable Securities may be sold without volume or manner-of-sale restrictions pursuant to Rule 144, without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the transfer agent and the affected Investors, or (iii)(A) the second anniversary of the Closing DateDate with respect to Registrable Securities that are Conversion Shares, and (iiB) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) fifth anniversary of the Closing Date with respect to Registrable Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statementthat are Common Warrant Shares;
(d) furnish (which may be furnished electronically) to the Investor with respect to the Shares Registrable Securities registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses prospectuses and Preliminary Prospectuses preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, 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 prospectuses or Preliminary Prospectuses 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 prospectuses or Preliminary Prospectusespreliminary prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor and use its best reasonable efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c8.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) 8.1 and the registration of the Shares Registrable Securities pursuant to the Registration StatementStatement except with respect to any legal or attorney fees incurred by any of the Investors in connection with the Registration Statement and any amendments thereto; and
(g) advise the InvestorInvestor (which advisement may occur electronically), 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 best 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. Notwithstanding anything to The Investor acknowledges that the contrary herein, Company may include on the Registration Statement shall cover only shares of Common Stock of the SharesCompany for resale by certain other stockholders of the Company, and that the Company may file a subsequent registration statement for the resale of shares of Common Stock by certain other stockholders of the Company. In The Investor further acknowledges that the Company will be under no event at any time before obligation to include the Investor’s Registrable Securities in the Registration Statement becomes effective with respect if the Investor does not timely return to the Shares shall Company completed responses to the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or Company’s request for transactions covered by Rule 145 of the Securities Act, without the prior written consent of a majority information to be included in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SECStatement.
Appears in 1 contract
Registration Procedures and Other Matters. The Company shall:: -----------------------------------------
(a) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 20 business days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)Date, a registration statement on Form S-3 (the “"Registration Statement”") to enable the resale of the Shares Securities by the Investors from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactionstransactions pursuant to Rule 415 of the Securities Act;
(b) use its commercially reasonable best efforts, subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 30 days after the Registration Statement is filed by the CompanyCompany (unless the Registration Statement is reviewed by the SEC), such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 4530-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c) use its 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 (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares 's Securities purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares Securities then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares Securities purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares Securities registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Shares 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 and use its best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares Securities pursuant to the Registration Statement; and
(g) advise the 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 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the SharesSecurities. In no event at any time before the Registration Statement becomes effective with respect to the Shares Securities shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities ActS-8, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, 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 Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 30 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)Date, a registration statement on Form S-3 (the “Registration Statement”) to enable the resale of the Shares by the Investors from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions;
(b) use commercially reasonable efforts, subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 90 days after the Registration Statement is filed by the Company, Company such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 4530-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c) use its best commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus Prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period 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 without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statementstatement or exemption from registration;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, 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 and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c6.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) 6.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the 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 best 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities ActS-8, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, 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 Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such informationInvestor, prepare and file with the SECCommission, within 10 days after the Closing Date (oron or before November 14, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)2002, a registration statement on Form S-3 (the “Registration Statement”) to enable the resale of the Shares by the Investors Investor from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions;
(b) use its best efforts, subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such informationInvestor, use its best efforts to cause the Registration Statement to become effective within 45 90 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c) use its best efforts to prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “Prospectus”) and take all other such actions (subject to Sections 7.2(d) and (e)) as may be necessary to keep the Registration Statement current, current and effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares purchased hereunder, the earlier of (i) the second anniversary of date that is 30 months after the Closing Date, (ii) the date on which the Investor may sell all Shares held by Investor without restriction pursuant to Rule 144(k) of the Securities Act, (iii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iiiiv) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;Registration Statement.
(d) promptly furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, 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 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 preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor and use its best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c)Investor; provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (ef) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares pursuant to the Registration Statement, regardless of whether a Registration Statement becomes effective; and
(g) advise the Investor, promptly (i) after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC Commission 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 best 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. Notwithstanding anything to , (ii) when the contrary hereinProspectus or any Prospectus Supplement or post-effective amendment has been filed, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective and, with respect to the Shares shall Registration Statement or any post-effective amendment thereto, when the Company publicly announce or file any other registration statementsame has become effective; and (iii) subject to Sections 7.2 (d) and (e), other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that after the Company shall not be regarded receive notice or obtain knowledge of the existence of any fact or the happening of any event that makes any statement of a material fact made in the Registration Statement, the Prospectus, any amendment or supplement thereto, or any document incorporated by reference therein untrue, or that requires the making of any additions to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of or changes in the Registration Statement by or the SEC staff, Prospectus in order to make the Registration Statement does statements therein not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable datemisleading. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC Commission shall not relieve the Company of any obligations it has hereunder; provided, however, however that if the Company receives notification from the SEC Commission that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC Commission shall be extended to the earlier of (i) the 90th day after such SEC Commission notification, or (ii) 120 days after the initial filing of the Registration Statement with the SECCommission.
Appears in 1 contract
Registration Procedures and Other Matters. (a) The Company shall:
(ai) subject to receipt of necessary information from as soon as possible but in any event not later than the Investor after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 days 30th day after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day), file a registration statement on Form S-3 (the “Registration Statement”) to enable the resale of the Shares and the Warrant Shares by the Investors Buyers from time to time (the "Registration Statement") through the automated quotation system of the Nasdaq National Market AMEX or in privately-negotiated transactions;
(bii) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, use its best commercially reasonable efforts to cause a Registration Statement to be declared effective by the SEC as soon as possible, but in any event not later than the earlier of (a) the 90th day following the Closing Date, and (b) the fifth trading day following the date on which the Company is notified by the SEC that the Registration Statement will not be reviewed or is no longer subject to become effective within 45 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing further review and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statementcomments;
(ciii) use its best commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “"Prospectus”") as may be necessary to keep the Registration Statement continuously current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Buyer's Shares and Warrant Shares purchased hereunderhereunder from the date it is first declared effective until, the earlier of (iA) two years from the second anniversary date of the Closing Datefinal exercise of all of the Warrants, (iiB) the date on which the Investor Buyer may sell all Shares and Warrant Shares then held by the Investor Buyer without restriction by the volume limitations of Rule 144(e144(k) of the Securities Act, or (iii) the public sale of all of the Shares and the Warrant Shares (such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statementperiod, the "Effectiveness Period");
(div) if (A) the Registration Statement is not filed on or prior to the date of filing required pursuant to Section 7.1(a), (B) the Registration Statement is not declared effective on or prior to the date required by Section 7.1(a)(ii), or (C) notwithstanding Section 7.2, after the date first declared effective by the SEC and prior to the expiration of the Effectiveness Period, the Registration Statement ceases to be effective and available to each Buyer as to its Shares and Warrant Shares (whether pursuant to Section 7.2(c), or otherwise) without being succeeded within twenty trading days by an effective amendment thereto or by a subsequent registration statement filed with and declared effective by the SEC, (any such failure being referred to as an "EVENT" and the date of such failure being the "EVENT DATE"), then, in addition to any other rights available to the Holders under this Agreement or applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to one percent (1.0%) of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement; and (y) on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to one percent (1.0%) of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement. If the Company fails to pay any liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event;
(v) furnish to the Investor Buyer with respect to the Shares and the Warrant Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor Buyer may reasonably request in writing, in order to facilitate the public sale or other disposition of all or any of the Shares or Warrant Shares by the InvestorBuyer; provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor Buyer shall be subject to the receipt by the Company of reasonable assurances from the Investor Buyer that the Investor Buyer 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;
(evi) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor Buyer and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); 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;
(fvii) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ ' fees and similar selling expenses, and any other fees or expenses incurred by the InvestorBuyer, including attorneys’ ' fees) and the registration of the Shares pursuant to the Registration Statement); and
(gviii) advise the Investor, Buyer 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 or threat of any proceeding for that purpose; and it will promptly use its best 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. .
(b) Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares and the Warrant Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities ActS-8, without the prior written consent of a majority 66 2/3% in interest of the Investors. Buyers.
(c) The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement shall contain (except if otherwise agreed by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (iHolders) the 90th day after such SEC notification, or (ii) 120 days after the initial filing "Plan of the Registration Statement with the SEC.Distribution" attached hereto as Annex A.
Appears in 1 contract
Samples: Securities Purchase Agreement (Avanir Pharmaceuticals)
Registration Procedures and Other Matters. The Company Issuer shall:
(a) subject to receipt of necessary information from the Investor Purchaser after prompt request from the Company Issuer to the Investors Purchaser to provide such information, promptly following the Closing but no later than the 60th day following the Initial Closing Date (the "Filing Date"), prepare and file with the Securities and Exchange Commission (the "SEC, within 10 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day), ") a registration statement on Form S-3 S-1 or such successor form (the “a "Registration Statement”") to enable the resale of the Shares Registrable Securities, by the Investors Purchaser or its transferees from time to time through over any national exchange on which the automated quotation system of the Nasdaq National Market Issuer's Common Stock is then traded, or in privately-negotiated transactions. The Issuer may exclude any shares of Registrable Securities if it is required to do so by the SEC in order for the SEC to declare the Registration Statement effective. Purchaser may not include any shares of Registrable Securities in the Registration Statement pursuant to this Agreement unless Purchaser furnishes to the Issuer in writing within five business days after receipt of request therefor, such requested information;
(b) use its commercially reasonable efforts, subject to receipt of necessary information from the Investor Purchaser after prompt request from the Company Issuer to the Investors Purchaser to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement150th day following the final Closing (the "Effectiveness Date");
(c) use its best commercially reasonable efforts to cause such Registration Statement to remain continuously effective and prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “"Prospectus”") (and the applicable Exchange Act reports incorporated therein by reference, so filed on a timely basis) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceedingending on the date that is, with respect to each Investor’s Shares purchased hereunderPurchaser's Registrable Securities, the earlier of (i) one year after the second anniversary of the Closing Effectiveness Date, (ii) at such time as the date on which the Investor Purchaser may sell all Shares Registrable Securities without registration pursuant to Rule 144(b) promulgated under the Securities Act (or any similar provision then held by the Investor without restriction by the volume limitations of Rule 144(e) of in force under the Securities Act), or (iii) such time as all Shares Registrable Securities purchased by such Investor in this Offering Purchaser have been sold or otherwise transferred pursuant to a registration statementstatement or otherwise;
(d) so long as Purchaser holds Registrable Securities, provide copies to Purchaser to review the Registration Statement and all amendments and supplements thereto, no fewer than three business days prior to their filing with the SEC, and not file any Registration Statement, amendment or supplement thereto to which a holder of the Registrable Securities reasonably objects in writing within such three business day period;
(e) furnish to the Investor Purchaser with respect to the Shares registered under Registrable Securities included in the Registration Statement such number of copies of the Registration Statement, Prospectuses and preliminary Prospectuses ("Preliminary Prospectuses Prospectuses" and individually, "Preliminary Prospectus") in conformity with the requirements of the Securities Act and such other documents as the Investor Purchaser may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Shares Registrable Securities by the InvestorPurchaser; provided, however, that the obligation of the Company Issuer to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor Purchaser shall be subject to the receipt by the Company Issuer of reasonable assurances from the Investor Purchaser that the Investor Purchaser will comply with the applicable provisions of prospectus delivery requirements under 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;
(ef) file documents required of the Company Issuer for normal customary blue sky clearance in states specified in writing by the Investor Purchaser and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company Issuer is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c7.1(b); provided, however, that the Company Issuer shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(fg) bear all expenses in connection promptly notify Purchaser after it receives notice of the time when the Registration Statement has been declared effective by the SEC, or when a supplement or amendment to any Registration Statement has been filed with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares pursuant to the Registration Statement; andSEC;
(gh) advise the InvestorPurchaser, promptly promptly: (i) after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation or threat of any proceeding for that purpose; and it will promptly use its best 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event ; and (ii) at any time before the Registration Statement becomes effective with respect when a Prospectus relating to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of Registrable Securities is required to be delivered under the Securities Act, without upon discovery that, or upon the prior written consent happening of an event as a result of which, the Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a majority material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in interest light of the Investors. The Investor acknowledges circumstances then existing;
(i) upon request and agrees that subject to appropriate confidentiality obligations, furnish to Purchaser copies of any and all transmittal letters or other correspondence with the Company shall not be regarded SEC or any other governmental agency or self-regulatory body or other body having jurisdiction (including any domestic or foreign securities exchange) relating to have breached its “best efforts” obligation under Section 7.1(bsuch offering of Registrable Securities;
(j) ifin the case of an Underwritten Offering, owing to a review furnish upon request, (i) an opinion of counsel for the Issuer dated the effective date of the Registration Statement applicable registration statement or the date of any amendment or supplement thereto, and a letter of like kind dated the date of the closing under the underwriting agreement, and (ii) a "cold comfort" letter, dated the date of the applicable registration statement or the date of any amendment or supplement thereto and a letter of like kind dated the date of the closing under the underwriting agreement, in each case, signed by the SEC staffindependent public accountants who have certified the Issuer's financial statements included or incorporated by reference into the applicable registration statement, and each of the Registration Statement does not become effective within 45 days after opinion and the Registration Statement is filed "cold comfort" letter shall be in customary form and covering substantially the same matters with respect to such registration statement (and the prospectus and any prospectus supplement included therein) as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to the underwriters in Underwritten Offerings of securities and such other matters as such underwriters or Purchaser may reasonably request;
(k) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the SEC, provided that following receipt and make available to its security holders, as soon as reasonably practicable, an earnings statement, which earnings statement shall satisfy the provisions of notice Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;
(l) make available to the appropriate representatives of the managing underwriter and Purchaser access to such review, information and Issuer personnel as is reasonable and customary to enable such parties to establish a due diligence defense under the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunderSecurities Act; provided, however, that if the Company receives notification from Issuer need not disclose any such information to any such representative unless and until such representative has entered into or is otherwise subject to a confidentiality agreement with the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request Issuer satisfactory to the SEC shall Issuer; and
(m) cause all such Registrable Securities registered pursuant to this Agreement to be extended to listed on each securities exchange or quotation system on which similar securities issued by the earlier of (i) the 90th day after such SEC notification, Issuer are then listed or (ii) 120 days after the initial filing of the Registration Statement with the SECquoted.
Appears in 1 contract
Registration Procedures and Other Matters. The If and when the Company is required by the provisions of Section 1 or 2 to register Registrable Securities, the Company shall:
(a) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day), a registration statement on Form S-3 (the “Registration Statement”) to enable the resale of the Shares by the Investors from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions;
(b) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c) use its best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period 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 without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) a. furnish to the Investor Selling Holders with respect to the Shares Registrable Securities registered under any registration statement filed by the Company pursuant to Sections 1 or 2 hereof (a "Registration Statement Statement") such number of copies of the Registration Statement, Prospectuses prospectuses and Preliminary Prospectuses preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor Selling Holders may reasonably request in writingrequest, 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 Selling Holders;
b. file documents required for compliance 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 any Selling Holder and use its reasonable best efforts to maintain such blue sky qualifications during until the period the Company is required date on which there ceases to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c)be any Registrable Securities outstanding; 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) c. bear all reasonable expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts 1 or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) 2 hereof and the registration of the Shares Registrable Securities pursuant to the Registration Statement; and, including the fees of one legal counsel for all of the Selling Holders not to exceed US$25,000 for each Registration Statement;
(g) d. advise the Investor, Selling Holders promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation or threat of any proceeding for that purpose; and it will promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 ; and
e. provide a "Plan of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review Distribution" section of the Registration Statement by substantially in a form reasonably acceptable to the SEC staff, Selling Holders (subject to the comments of the SEC).
f. Promptly following the effective date of the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such reviewStatement, the Company shall have used advise its transfer agent that the Registrable Securities covered by such Registration Statement are subject to an effective registration statement and can be reissued free of restrictive legend upon notice of a sale by a Selling Holder and confirmation by such Selling Holder that it has complied with the plan of distribution set forth in the Registration Statement and the prospectus delivery requirements of applicable securities laws; provided that the Company has not advised the transfer agent orally or in writing that such Registration Statement has been suspended; provided, further, that in the event the Company's transfer agent requires an opinion of counsel to the Company for any such reissuance, the Company shall use its reasonable best efforts to cause its counsel to issue an opinion to the Registration Statement to become effective at transfer agent stating the earliest practicable date. The Company understands that the Investor disclaims being foregoing within three business days after any such request for an underwriter, but the Investor being deemed an underwriter opinion by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SECtransfer agent.
Appears in 1 contract
Samples: Registration Rights Agreement (Electrum Strategic Resources LLC)
Registration Procedures and Other Matters. The Company shall:: -----------------------------------------
(a) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide each Purchaser for inclusion in such informationfiling, prepare and file with the SEC, within 10 180 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)Initial Closing, a registration statement on Form S-3 (the “"Registration Statement”") to enable covering the resale of Securities held by each Purchaser, or the Shares by the Investors Holders (defined in Section 7.4 below), from time to time through time, in compliance with the automated quotation system of the Nasdaq National Market or in privately-negotiated transactionsSecurities Act;
(b) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, use its reasonable best efforts to cause the Registration Statement to become effective within 45 days as promptly as practicable after the Registration Statement is filed by the Companyfiling, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “"Prospectus”") as may be necessary to keep the Registration Statement current, continuously effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares purchased hereunderHolder's Securities, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor each Holder may sell all Shares Securities then held by the Investor such Holder without restriction by the volume limitations of Rule 144(e) of the Securities Act, Act or (iiiii) such time as all Shares Securities purchased by such Investor in this Offering Holder have been sold pursuant to a registration statementstatement or are otherwise freely tradeable;
(d) furnish to the Investor each Holder with respect to the Shares Securities registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor such Holder may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Shares Securities by the Investorsuch Holder; provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor such Holder shall be subject to the receipt by the Company of reasonable assurances from the Investor such Holder that the Investor such Holder will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor each Holder and use its reasonable best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c7.3(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) 7.3 and the registration of the Shares Securities pursuant to the Registration Statement; andStatement (provided that the Holders shall bear the cost of all underwriting discounts and selling commissions and similar fees applicable to the sale of Securities and all fees and expenses of legal counsel for any Holder and all transfer taxes);
(g) advise the Investor, each Holder promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation or threat of any proceeding for that purpose; and it will promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued; and
(h) use its reasonable best efforts to cause the Common Stock underlying the Shares and the Warrants to be listed on the Nasdaq National Market in connection with the filing of the Registration Statement. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SECSecurities.
Appears in 1 contract
Samples: Securities Purchase Agreement (Warburg Pincus Private Equity Viii L P)
Registration Procedures and Other Matters. The Company shallwill:
(a) subject Subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such informationInvestors, prepare and file with the SEC, within 10 business days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)Date, a registration statement on Form S-3 (the “"Registration Statement”) "), a copy of which such Registration Statement shall be provided to the Investors prior to filing in order to provide Investors with an opportunity to comment on the Plan of Distribution Section thereof, to enable the resale of the Shares by the Investors Investors, or a permitted transferee of an Investor, from time to time through the automated quotation system of the Nasdaq National Market or Market, in privately-negotiated transactionstransactions or in other transactions permitted under the Registration Statement;
(b) Use its best efforts, subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such informationInvestors, use its best efforts to cause the Registration Statement to become effective within 45 30 days (or 90 days in the event that the Registration Statement is selected for review by the staff of the SEC) after the Registration Statement is filed by the CompanyCompany (or, if such 30th or 90th day is not a business day, the first business day thereafter), such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 4530-day or 90-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c) use Use its best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares purchased hereunder, until such time as the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor Investors may sell all any remaining Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish Furnish to the Investor with respect to the Shares registered under the Registration Statement Investors such number of copies of the Registration Statement, Prospectuses prospectus and Preliminary Prospectuses preliminary prospectus in conformity with the requirements of the Securities Act and such other documents as the Investor Investors may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Shares by the InvestorInvestors; provided, however, that the obligation of the Company to deliver copies of Prospectuses the prospectus or Preliminary Prospectuses preliminary prospectus to the Investor shall Investors will be subject to the receipt by the Company of reasonable assurances from the Investor Investors that the Investor Investors will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses prospectuses or Preliminary Prospectusespreliminary prospectuses;
(e) file File documents required of the Company for normal blue sky clearance in states specified in writing by the Investor Investors and use its best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c6.1(c); provided, however, 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) bear Bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) 6.1 and the registration of the Shares pursuant to the Registration Statement; and;
(g) advise Advise the InvestorInvestors, 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 or threat of any proceeding for that purpose; and it will promptly use its 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) Will timely file the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder (or, if the Company is not required to file such reports, it will, upon the request of the Investors made after the first anniversary of the Closing Date, make publicly available such information as necessary to permit sales pursuant to Rule 144 under the Securities Act), and it will take such further action as the Investors may reasonably request, all to the extent required from time to time to enable the Investors to sell Shares without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 under the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC. Upon the request of the Investors, the Company will deliver to such holder a written statement as to whether it has complied with such information and requirements. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at , plus any time before shares deemed to be covered by the Registration Statement becomes effective with respect pursuant to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of 416 under the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Samples: Convertible Note and Warrant Purchase Agreement (Mgi Pharma Inc)
Registration Procedures and Other Matters. The Company shall:
(ai) use its best efforts, subject to receipt of necessary information from the Investor Purchaser after prompt request from the Company to the Investors Purchaser to provide such information, prepare and file with the SEC, within 10 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day), a registration statement on Form S-3 (the “Registration Statement”) to enable the resale of the Shares by the Investors from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions;
(b) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the Registration Statement to become effective as soon as practicable, an in any event within 45 ninety (90) days after the Registration Statement is filed by the Company, Company such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c) use its best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period 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 without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor Purchaser with respect to the Shares Conversion Stock registered under the Registration Statement such number of copies of the Registration Statement, Statement and Prospectuses and Preliminary Prospectuses used in connection therewith in conformity with the requirements of the Securities Act and such other documents as the Investor Purchaser may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Shares Conversion Stock by the InvestorPurchaser; provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor Purchaser shall be subject to the receipt by the Company of reasonable assurances from the Investor Purchaser that the Investor Purchaser will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor and use its best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); 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;
(fiii) bear all expenses in connection with the procedures in paragraph (ai) through and (eii) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees4(c) and the registration of the Shares Conversion Stock pursuant to the Registration StatementStatement subject to Section 4(b); and
(g) and advise the InvestorPurchaser, 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 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges ; and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor Purchaser disclaims being an underwriter, but the Investor Purchaser being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, however that if the Company receives notification from the SEC that the Investor Purchaser 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: Note Purchase Agreement (Chartwell International, Inc.)
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt On one occasion, if requested in writing during the period commencing on the Closing Date and ending on the second anniversary of necessary information from the Closing Date (the “Request Date”) by any Investor after prompt request from who is the Company to record holder of any Shares issued in the Investors to provide such informationOffering and not included in an effective or pending registration statement, prepare and file with the SEC, SEC within 10 ninety (90) days after the Closing Request Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day“Filing Date”), a registration statement on Form S-3 or such other successor form (except that if the Company is not then eligible to register for resale the Registrable Securities (as defined below) on Form S-3, in which case such registration shall be on Form S-1 or any successor form) (the “Registration Statement”) to enable the resale of the Shares which are the subject of such request, unless such Shares are included in an effective registration statement or included for registration in a pending registration statement (collectively, the “Registrable Securities”) by the Investors who are the record holders of the Registrable Securities from time to time through pursuant to the automated quotation system Plan of Distribution set forth as Exhibit B. In addition, upon the Nasdaq National Market receipt of such request, the Company shall promptly give written notice to all other Investors who are record holders of Registrable Securities that such registration statement is to be filed and shall include in the Registration Statement the Registrable Securities for which it has received written requests within 10 calendar days after the Company gives such written notice. Such other requesting record holders shall be deemed to have exercised their demand registration right under this Section 6.1(a). Notwithstanding anything to the contrary contained herein, the Company’s obligation to file the Registration Statement or in privately-negotiated transactions;
(b) include any Registrable Securities therein is subject to the Company’s receipt of necessary information from the Investor Investors or other record holders of the Registrable Securities after prompt request from requested by the Company to the Investors to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(cb) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus Prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares Registrable Securities purchased hereunder, the earlier of (i) the second anniversary of the Closing Datedate on which the Registrable Securities were purchased, (ii) the date on which the Investor Investors may sell all Shares Registrable Securities then held by the Investor Investors without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares Registrable Securities purchased by such Investor Investors in this Offering have been sold pursuant to a registration statement;
(c) so long as an Investor holds Registrable Securities, provide copies to and permit legal counsel designated by the Investor to review the Registration Statement and all amendments and supplements thereto (at no additional expense to the Company), no fewer than two business days prior to their filing with the SEC, and not file any Registration Statement, amendment or supplement thereto to which holders of a majority in interest of the Registrable Securities reasonably object in writing within such two business day period;
(d) furnish to the each Investor with respect to the Shares Registrable Securities registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses (under cover of the form of letter attached hereto as Exhibit D) and preliminary Prospectuses (“Preliminary Prospectuses Prospectuses” and individually, “Preliminary Prospectus”) in conformity with the requirements of the Securities Act and such other documents as the such Investor may reasonably request in writingrequest, 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 such Investor that the such Investor will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor Investors and use its reasonable best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c6.1(b); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) 6.1 and the registration of the Shares Registrable Securities pursuant to the Registration Statement; and;
(g) advise the 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 best 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. Notwithstanding anything ; and
(h) With a view to making available to the contrary herein, Investors the Registration Statement shall cover only benefits of Rule 144 (or its successor rule) and any other rule or regulation of the Shares. In no event SEC that may at any time before permit the Registration Statement becomes effective with respect Investors to sell Registrable Securities to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Act, public without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such reviewregistration, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwritercovenants and agrees to: (i) make and keep public information available, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; providedas those terms are understood and defined in Rule 144, 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 until the earlier of (iA) such date as all of the 90th day after Investor’s Registrable Securities may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such SEC notification, or date as all of the Investor’s Registrable Securities shall have been resold; (ii) 120 days after file with the initial filing SEC in a timely manner all reports and other documents required of the Registration Statement Company under the Exchange Act; and (iii) furnish to any Investor upon request, as long as such Investor owns any Registrable Securities, (A) a written statement by the Company that it has complied with the SECreporting requirements of the Exchange Act; (B) a copy of the Company’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q (exclusive of exhibits thereto), 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 such Registrable Securities without registration.
Appears in 1 contract
Samples: Securities Purchase Agreement (Nutri System Inc /De/)
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 days after not later than March 31, 2004 (the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day"Filing Date"), a registration statement on Form S-3 or such other successor form (except that if the Company is not then eligible to register for resale the Registrable Securities (as defined below) on Form S-3, in which case such registration shall be on Form S-1 or any successor form) (the “"Registration Statement”") to enable the resale of the Shares (the "Registrable Securities") by the Investors from time to time through the automated OTCBB quotation system of the Nasdaq National Market or in other privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 120 days after the Registration Statement is filed by the CompanyCompany(the "Effectiveness Date"), such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45120-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares 's Registrable Securities purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor Investors may sell all Shares Registrable Securities then held by the Investor Investors without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares Registrable Securities purchased by such Investor the Investors in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor Investors with respect to the Shares Registrable Securities registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses prospectuses and Preliminary Prospectuses preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor Investors may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Shares Registrable Securities by the InvestorInvestors; provided, however, that the obligation of the Company to deliver copies of Prospectuses prospectuses or Preliminary Prospectuses preliminary prospectuses to the Investor Investors shall be subject to the receipt by the Company of reasonable assurances from the Investor Investors that the Investor Investors will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses prospectuses or Preliminary Prospectusespreliminary prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor Investors and use its reasonable best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); 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) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission under the Securities Act and the Exchange Act, and take such other actions as may be reasonably necessary to facilitate the registration of the Registrable Securities hereunder;
(g) bear all expenses of Company in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares Registrable Securities pursuant to the Registration Statement; and;
(gh) advise the InvestorInvestors, 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 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. Notwithstanding anything to the contrary herein, ; and
(i) if: (i) the Registration Statement is not filed on or prior to the Filing Date in violation of this Agreement or (ii) the Registration Statement filed hereunder is not declared effective by the SEC on or before the Effectiveness Date or (iii) after the Registration Statement is first declared effective by the SEC, it ceases for any reason to remain continuously effective as to all Registrable Securities for which it is required to be effective or the Investors are not permitted to utilize the prospectus therein to resell such Registrable Securities, other than, in each case, within the time limits permitted by Sections 7.2(d), (any such failure or breach being referred to as an "Event"), then in addition to any other rights the Investors may have hereunder or under applicable law: (x) on each such Event date the Company shall cover only pay to each Investor an amount in cash, as liquidated damages and not as a penalty, equal to 1.5% of the Sharesaggregate purchase price paid by such Investor pursuant to the Agreement for any Registrable Securities then held by such Investor; and (y) on each monthly anniversary of each such Event (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Investor an amount in cash, as liquidated damages and not as a penalty, equal to 1.5% of the aggregate purchase price paid by such Investor pursuant to the Agreement for any Registrable Securities then held by such Investor. If the Company fails to pay any liquidated damages pursuant to this Section in full within seven business days after the date payable, the Company will pay interest thereon at a rate of 10% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Investors, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. With a view to making available to the 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 Investors to sell Registrable Securities to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the 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 Investors' Registrable Securities shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Exchange Act; and (iii) furnish to the Investors upon request, as long as the Investors owns any Registrable Securities, (A) a written statement by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act; (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investors of any rule or regulation of the SEC that permits the selling of such Registrable Securities without registration. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities ActS-8, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims Investors disclaim being an underwriterunderwriters, but the an Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Registration Procedures and Other Matters. The Company shall:: -----------------------------------------
(a) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 50 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)Date, a registration statement on Form S-3 (the “"Registration Statement”") to enable the resale of the Shares and the Warrant Shares by the Investors from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions;
(b) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use its best reasonable commercial efforts to cause the Registration Statement to become effective within 45 on or prior to the 90th day after the Closing Date, or if reviewed by the SEC, then 120 days after the Registration Statement is filed by Closing Date (the Company, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement"Effective Date");
(c) use its best reasonable commercial efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus Prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period (the "Registration Period") not exceeding, with respect to each Investor’s 's Shares purchased hereunderhereunder and the Warrant Shares purchased under the Warrant, the earlier 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 the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering and Warrant Shares issuable pursuant to the Warrant have been sold pursuant to a registration statementstatement ;
(d) furnish to the Investor with respect to the Shares and the Warrant Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, 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 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 and use its best reasonable commercial efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ ' fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ feesattorney fees of the Investor) and the registration of the Shares and Warrant Shares pursuant to the Registration Statement; and
(g) advise the 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 best reasonable commercial 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares and the Warrant Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares and the Warrant Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities ActS-8, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but if the SEC deems the Investor being deemed to be an underwriter by the SEC Company shall not relieve the Company be relieved of any obligations it has hereunder; provided, however, however that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Samples: Stock and Warrant Purchase Agreement (Parkervision Inc)
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors Investor to provide such information, prepare and file with the SEC, within 10 30 calendar days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day“Filing Date”), a registration statement on Form S-3 (the “Registration Statement”) to enable the resale of the Shares and the Warrant Shares by the Investors from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions;
(b) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, use its best reasonable commercial efforts to cause the Registration Statement to become effective within 45 days on or prior to the 90th calendar day after the Closing Date (the “Required Effective Date”). However, so long as the Company filed the Registration Statement is filed by the CompanyFiling Date, such efforts to includeif the Registration Statement receives Commission review, without limiting then the generality of Required Effective Date will be the foregoing, preparing and filing with 120th calendar day after the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration StatementClosing Date;
(c) use its best reasonable commercial efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus Prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares purchased hereunderand Warrant Shares, the earlier 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 the volume limitations of Rule 144(e144(k) of the Securities Act, or (iii) such time as all Shares, and Warrant Shares issuable pursuant to the Warrant, purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) comply with any prospectus publication requirement then applicable to it and furnish to the Investor with respect to the Shares and Warrant Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, 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 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 and use its best reasonable commercial efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ feesattorney fees of the Investor) and the registration of the Shares and Warrant Shares pursuant to the Registration Statement; and;
(g) advise the 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 best reasonable commercial 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) provide a “Plan of Distribution” section of the Registration Statement in the form attached hereto as Exhibit A. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares and Warrant Shares. In no event at any time before the expiration of the earlier of (i) 120 days after the date of this Securities Purchase Agreement or (ii) the effective date of the Registration Statement becomes effective with respect to the Shares and Warrant Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities ActS-8, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but if the SEC deems the Investor being deemed to be an underwriter by the SEC Company shall not relieve the Company be relieved of any obligations it has hereunder; provided, however, however that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Registration Procedures and Other Matters. (a) The Company shall:
(ai) subject to receipt of necessary information from as soon as possible but in any event not later than the Investor after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 days 30th day after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day), file a registration statement on Form S-3 (the “Registration Statement”) to enable the resale of the Shares and the Warrant Shares by the Investors Buyers from time to time (the "Registration Statement") through the automated quotation system of the Nasdaq National Market AMEX or in privately-negotiated transactions;
(bii) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, use its best commercially reasonable efforts to cause a Registration Statement to be declared effective by the SEC as soon as possible, but in any event not later than the earlier of (a) the 90th day following the Closing Date, and (b) the fifth trading day following the date on which the Company is notified by the SEC that the Registration Statement will not be reviewed or is no longer subject to become effective within 45 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing further review and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statementcomments;
(ciii) use its best commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “"Prospectus”") as may be necessary to keep the Registration Statement continuously current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Buyer's Shares and Warrant Shares purchased hereunderhereunder from the date it is first declared effective until, the earlier of (iA) two years from the second anniversary date of the Closing Datefinal exercise of all of the Warrants, (iiB) the date on which the Investor Buyer may sell all Shares and Warrant Shares then held by the Investor Buyer without restriction by the volume limitations of Rule 144(e144(k) of the Securities Act, or (iii) the public sale of all of the Shares and the Warrant Shares (such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statementperiod, the "Effectiveness Period");
(div) if (A) the Registration Statement is not filed on or prior to the date of filing required pursuant to Section 7.1(a), (B) the Registration Statement is not declared effective on or prior to the date required by Section 7.1(a)(ii), or (C) notwithstanding Section 7.2, after the date first declared effective by the SEC and prior to the expiration of the Effectiveness Period, the Registration Statement ceases to be effective and available to each Buyer as to its Shares and Warrant Shares (whether pursuant to Section 7.2(c), or otherwise) without being succeeded within twenty trading days by an effective amendment thereto or by a subsequent registration statement filed with and declared effective by the SEC, (any such failure being referred to as an "EVENT" and the date of such failure being the "EVENT DATE"), then, in addition to any other rights available to the Holders under this Agreement or applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to one percent (1.0%) of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement; and (y) on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to one percent (1.0%) of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement. If the Company fails to pay any liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event;
(v) furnish to the Investor Buyer with respect to the Shares and the Warrant Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor Buyer may reasonably request in writing, in order to facilitate the public sale or other disposition of all or any of the Shares or Warrant Shares by the InvestorBuyer; provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor Buyer shall be subject to the receipt by the Company of reasonable assurances from the Investor Buyer that the Investor Buyer 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;
(evi) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor Buyer and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); 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;
(fvii) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ ' fees and similar selling expenses, and any other fees or expenses incurred by the InvestorBuyer, including attorneys’ ' fees) and the registration of the Shares pursuant to the Registration Statement); and
(gviii) advise the Investor, Buyer 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 or threat of any proceeding for that purpose; and it will promptly use its best 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. .
(b) Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares and the Warrant Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities ActS-8, without the prior written consent of a majority 66 -2/3% in interest of the Investors. Buyers.
(c) The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement shall contain (except if otherwise agreed by the SEC staffHolders) the "Plan of Distribution" attached hereto as Annex A, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of subject to such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter revisions thereto as may be requested by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SECSecurities and Exchange Commission.
Appears in 1 contract
Samples: Securities Purchase Agreement (Avanir Pharmaceuticals)
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 15 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day"Filing Date"), a registration statement on Form S-3 (the “"Registration Statement”") to enable the resale of the Shares by the Investors from time to time through in compliance with the automated quotation system of the Nasdaq National Market or in privately-negotiated transactionsSecurities Act;
(b) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 days on or prior to the 45th day after the Closing Date (the "Required Effective Date"). However, so long as the Company filed the Registration Statement is filed by the CompanyFiling Date, such efforts to includeif the Registration Statement receives SEC review, without limiting then the generality of Required Effective Date will be the foregoing, preparing and filing with ninetieth (90th) calendar day after the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration StatementClosing Date;
(c) use its best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement in compliance with applicable laws, and the prospectus used in connection therewith (the “"Prospectus”") as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s 's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, 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 and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e), (h) and the last paragraph of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement (other than any underwriting discounts or commissions, brokers’ ' fees and similar selling expenses, expenses and any other fees or expenses incurred by the Investor, including attorneys’ ' fees) and the registration of the Shares pursuant to the Registration Statement; and);
(g) advise the 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 best 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) include in the Registration Statement a "Plan of Distribution" section substantially in the form attached hereto as Exhibit A. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities ActS-8, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, 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. Within five business days of the effectiveness date of the Registration Statement, the Company shall give notice to the Investor of such effectiveness and use its commercially reasonable efforts to cause its counsel to issue an appropriate opinion or opinions to the transfer agent substantially to the effect that the shares are subject to an effective registration statement and can be reissued free of restrictive legend in accordance with provisions of Section 7.6.
Appears in 1 contract
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use its reasonable best efforts to prepare and file with the SEC, within 10 fifteen (15) days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)Date, a registration statement on Form S-3 (the “7 8 "Registration Statement”") to enable the resale of the Shares by the Investors from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions, and shall in a timely manner file with the SEC all documents and reports required to be filed under the Exchange Act and shall use its reasonable best efforts to do all such other things as would allow the Company to maintain its eligibility to use a registration statement on Form S-3 until the second anniversary of the Closing Date;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 thirty (30) days after the Registration Statement is filed by the Company, Company such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 4530-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;.
(c) use its best reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus Prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, current and effective and free from any material misstatement or omission to state a material fact for a period not exceedingto exceed, with respect to each Investor’s 's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;.
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, 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 and use its best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c)Investor; provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (aparagraph(a) through (ef) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares pursuant to the Registration Statement; andother than fees and expenses, if any, of counsel or other advisors to the Investors or underwriting discounts, brokerage fees and commissions incurred by the Investors.
(g) advise the 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 best 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) disclose in the "Selling Stockholders" and "Plan of Distribution" sections of the Registration Statement and any amendment or supplement thereto that the Shares offered by the prospectus may be offered from time to time by and for the respective accounts of the Investors named therein and their pledgees, donees, transferees, distributees or successors in interest, including, without limitation, their respective affiliates and limited and/or general partners, who may sell the Shares pursuant to the prospectus that is part of the Registration Statement; and supplement or amend the Registration Statement to provide, if necessary, the names of any such pledgees, donees, transferees, distributees or successors in interest within two (2) business days of notice from an Investor. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Act, statement without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SEC.in
Appears in 1 contract
Samples: Stock Purchase Agreement (United Therapeutics Corp)
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use best efforts to prepare and file with the SEC, within 10 business days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)Date, a registration statement on Form S-3 S-1 (the “"S-1 Registration Statement”") to enable the resale of the Shares by the Investors from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions;
(b) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the S-1 Registration Statement to become effective within 45 30 days after the S-1 Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 4530-day period any financial statements that are required to be filed prior to the effectiveness of such S-1 Registration Statement;
(c) subject to receipt of necessary information from the Investors after prompt request from the Company to the Investors to provide such information, use its best efforts to prepare and file with the SEC such amendments and supplements SEC, within 10 days after the Company first becomes eligible to the Registration Statement and the prospectus used in connection therewith file a registration statement on Form S-3, a registration statement on Form S-3 (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period 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 without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the "S-3 Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with ") to enable the requirements of the Securities Act and such other documents as the Investor may reasonably request in writing, in order to facilitate the public sale or other disposition of all or any resale of the Shares by the Investor; provided, however, that Investors from time to time through the obligation automated quotation system of the Company to deliver copies of Prospectuses Nasdaq National Market 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 and use its best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the 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 purposeprivately-negotiated transactions; and it will promptly to use its 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the S-3 Registration Statement to become effective at as soon as practicable thereafter, such efforts to include, without limiting the earliest generality of the foregoing, preparing and filing with the SEC as promptly as practicable date. The Company understands any financial statements that are required to be filed prior to the Investor disclaims being an underwriter, but effectiveness of such S-3 Registration Statement (the Investor being deemed an underwriter term "Registration Statement" shall mean the S-1 Registration Statement until the S-3 Registration Statement is first declared effective by the SEC SEC, after which time it shall not relieve mean 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 S-3 Registration Statement with the SEC.Statement);
Appears in 1 contract
Registration Procedures and Other Matters. The Company shall:
(ai) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 days after no later than December 12, 2005 (the Closing Date (or, if earlier of the date such tenth day registration statement is a Saturday, Sunday actually filed or holiday, then by is required to be filed is the next succeeding business day“Filing Date”), a registration statement on Form S-3 X-0, Xxxx X-0, or Form S-1 (the “Registration Statement”) to enable the resale of the Shares and the Warrant Shares by the Investors from time to time through the automated any quotation system of on which the Nasdaq National Market Common Stock is quoted or listed, if applicable, or in privately-negotiated transactions;
(bii) use its best efforts, subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, information (provided that failure on the part of one Investor shall not relieve the Company from its obligation to use its best efforts with respect to complying Investors), to cause the Registration Statement to become effective on or before the date that is the earliest of (1) in the event of no review by the staff of the SEC (the “Staff”), within 45 5 days of being informed by the Staff that the Staff has decided not to review the Registration Statement, but in no event later than 30 days after the Filing Date, (2) in the event of a review by the Staff, within 5 days of being informed by the Staff that the Staff have no further comments on such Registration Statement, but in no event later than 90 days after the Filing Date (the earliest of (1) and (2) thereof, the “Required Effective Date” and the date the Registration Statement is filed initially declared effective by the CompanySEC, the “Effective Date”), such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c; and, in the event that the filing referred to in Section 3.10(a)(i) above is on a form other than Form S-3, the Company shall use its best efforts, subject to receipt of necessary information from the Investors after prompt request from the Company to the Investors to provide such information (provided that failure on the part of one Investor shall not relieve the Company from its obligation to use best efforts with respect to complying Investors), to prepare and file with the SEC such amendments and supplements SEC, within 10 days after the Company first becomes eligible to the Registration Statement and the prospectus used in connection therewith file a registration statement on Form S-3, a registration statement on Form S-3 (the “ProspectusS-3 Registration Statement”) as may be necessary to keep enable the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares purchased hereunder, the earlier of (i) the second anniversary resale of the Closing Date, (ii) Shares and Warrant Shares by the date Investors from time to time through any quotation system on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, Common Stock is quoted or (iii) such time as all Shares purchased by such Investor listed or in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writing, 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 and use its best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the 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 purposeprivately-negotiated transactions; and it will promptly to use its 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the S-3 Registration Statement to become effective at as soon as practicable thereafter, such efforts to include, without limiting the earliest generality of the foregoing, preparing and filing with the SEC as promptly as practicable date. The Company understands any financial statements that are required to be filed prior to the Investor disclaims being an underwriter, but effectiveness of such S-3 Registration Statement (the Investor being deemed an underwriter term “Registration Statement” shall mean the S-1 or S-2 Registration Statement until the S-3 Registration Statement is declared effective by the SEC SEC, after which time it shall not relieve mean 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 S-3 Registration Statement with the SECStatement).
Appears in 1 contract
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use its reasonable best efforts to prepare and file with the SEC, within 10 35 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)Date, a registration statement on Form S-3 (the “"Registration Statement”") to enable the resale of the Shares by the Investors from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions;
(b) will use its reasonable best efforts to file with the SEC on or prior to 30 days from the Closing a Current Report on Form 8-K which includes the financial statements required by Regulation S-X for such Registration Statement reflecting the acquisition of NetMind Technologies, Inc. in a pooling of interests transactions;
(c) use its reasonable best efforts, subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 30 days after the Registration Statement is filed by the Company, Company such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 4530-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(cd) use its best reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus Prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, current and effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s 's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;.
(de) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, 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;
(ef) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor and use its best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c)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;
(fg) bear all expenses in connection with the procedures in paragraph (a) through (ef) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares pursuant to the Registration Statement; and
(gh) advise the 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 best 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; providedPROVIDED, however, HOWEVER that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Registration Procedures and Other Matters. a. The Company shall:
(ai) subject to receipt of necessary information from as soon as possible but in any event not later than the Investor after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 days 60th day after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day), file a registration statement on Form S-3 (the “Registration Statement”or, if Form S-3 is note then available, on such form of registration statement as is then available to effect a registration of all Shares and Warrant Shares) to enable the resale of the Shares and the Warrant Shares by the Investors Purchaser from time to time through (the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions"Registration Statement");
(bii) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, use its best commercially reasonable efforts to cause a Registration Statement to be declared effective by the SEC as soon as possible, but in any event not later than the earlier of (a) the 120th day following the Closing Date, and (b) the fifth trading day following the date on which the Company is notified by the SEC that the Registration Statement will not be reviewed or is no longer subject to become effective within 45 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing further review and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statementcomments;
(ciii) use its best commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “"Prospectus”") as may be necessary to keep the Registration Statement continuously current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investorthe Purchaser’s Shares and Warrant Shares purchased hereunderhereunder from the date it is first declared effective until, the earlier of (iA) six months from the second anniversary date of the Closing Datefinal exercise of all of the Warrants, (iiB) the date on which the Investor Purchaser may sell all Shares and Warrant Shares then held by the Investor Purchaser pursuant to Rule 144 without any restriction by as to the volume limitations number of Rule 144(e) securities as of the Securities Acta particular date that can then be immediately sold, or (iiiC) the public sale of all of the Shares and the Warrant Shares (such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statementperiod, the "Effectiveness Period");
(div) if (A) the Registration Statement is not filed on or prior to the date of filing required pursuant to Section 9.1(a)(i), (B) the Registration Statement is not declared effective on or prior to the date required by Section 9.1(a)(ii), or (C) notwithstanding Section 9.1(a)(ii), after the date first declared effective by the SEC and prior to the expiration of the Effectiveness Period, the Registration Statement ceases to be effective and available to each Purchaser as to its Shares and Warrant Shares (whether pursuant to Section 9, or otherwise) without being succeeded within 20 trading days by an effective amendment thereto or by a subsequent registration statement filed with and declared effective by the SEC, (any such failure being referred to as an "Event" and the date of such failure being the "Event Date"), then, in addition to any other rights available to the Purchaser under this Agreement or applicable law: (w) on the failure by the Company to comply with the Event required pursuant to Section 9.1(a)(i) the Company shall pay to the Purchaser an amount in cash, as liquidated damages and not as a penalty, equal to two percent of the Subscription Price paid by the Purchaser and on each monthly anniversary of such Event Date (if the Event has not been cured by such date) until the applicable Event is cured, the Company shall pay to the Purchaser a further amount in cash, as liquidated damages and not as a penalty, equal to one percent of the Subscription Price paid by the Purchaser; (x) on the failure by the Company to comply with the Event required pursuant to Section (ii) or the occurrence of the Event set forth in Section (iv)(C) and on each monthly anniversary of such Event Dates (if the Event has not been cured by such date) until the applicable Event is cured, an amount shall accrue and be payable by the Company to the Purchaser, as liquidated damages and not as a penalty, equal to one percent of the Subscription Price paid by the Purchaser; and if an Event is not cured within 90 days of the applicable Event Date, all liquidated damages that have accrued and are owed and continue to accrue to the Purchaser shall be paid in cash, and any liquidated damages shall not exceed six percent of the Subscription Price paid by the Purchaser. The parties agree that the Company shall not be liable for liquidated damages under this Agreement with respect to any Shares and Warrant Shares that the Company was not permitted to include on such Registration Statement due solely to the SEC’s application of Rule 415. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event;
(v) furnish to the Investor Purchaser with respect to the Shares and the Warrant Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities 1933 Act and such other documents as the Investor Purchaser may reasonably request in writing, in order to facilitate the public sale or other disposition of all or any of the Shares or Warrant Shares by the InvestorPurchaser; provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor Purchaser shall be subject to the receipt by the Company of reasonable assurances from the Investor Purchaser that the Investor Purchaser will comply with the applicable provisions of the Securities 1933 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;
(evi) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor Purchaser and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c9.1(a)(iii); 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;
(fvii) bear all expenses in connection with the procedures in paragraph (a9.1(a)(i) through (evi) of this Section 7.1 9.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the InvestorPurchaser, including attorneys’ fees) and the registration of the Shares pursuant to the Registration Statement); and
(gviii) advise the Investor, Purchaser 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 or threat of any proceeding for that purpose; and it will promptly use its best 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. .
b. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the SharesShares and the Warrant Shares and such other securities issued by the Company subject to registration rights. In no event at any time before the Registration Statement becomes effective with respect to the Shares and Warrant Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or registrations for transactions covered other securities issued by Rule 145 of the Securities ActCompany subject to registration rights, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SEC.Purchaser
Appears in 1 contract
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 30 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)First Closing, a registration statement on Form S-3 (the “"Registration Statement”") to enable the resale of the Conversion Shares and the Warrant Shares by the Investors from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions;
(b) use its best efforts, subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 60 days after the Registration Statement is filed by the Company, Company such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 4560-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c) use its 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 (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s the Conversion Shares purchased hereunderhereunder and Warrant Shares purchased under the Warrant, the earlier of (i) the second anniversary of the Closing Datedated of the final Closing, (ii) the date on which the Investor may sell all Conversion Shares and Warrant Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Conversion Shares purchased by such Investor in this Offering and Warrant Shares issuable pursuant to the Warrant have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Conversion Shares and Warrant Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Preferred Shares or Warrant 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 and use its best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Conversion Shares and Warrant Shares pursuant to the Registration Statement, other than fees and expenses, if any, of counsel or other advisors to the Investor or underwriting discounts, brokerage fees and commissions incurred by the Investor; and
(g) advise the 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 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Conversion Shares and the Warrant Shares. In no event at any time before the Registration Statement becomes effective with respect to the Conversion Shares and the Warrant Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 S-8, or for transactions covered by Rule 145 of post-effective amendments to registration statements already in existence on the Securities Actdate hereof, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, 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 Other Matters. The Company Issuer shall:
(a) subject to receipt of necessary information from the Investor Purchasers after prompt request from the Company Issuer to the Investors Purchasers to provide such information, promptly following the Closing but no later than 60 days after the Closing (the "Filing Date"), prepare and file with the Securities and Exchange Commission (the "SEC, within 10 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day), ") a registration statement on Form S-3 or such other successor form (except that if the “Issuer is not then eligible to register for resale the Converted Shares on Form S-3, in which case such registration shall be on Form S-1 or any successor form) (a "Registration Statement”") to enable the resale of the Shares Converted Shares, by the Investors Purchasers or their transferees from time to time through over the automated quotation system of the Nasdaq National Market American Stock Exchange or in privately-negotiated transactions. No Purchaser may include any Converted Share in the Registration Statement pursuant to this Agreement unless such Purchaser furnishes to the Issuer in writing within five business days after receipt of request therefor, such requested information;
(b) use commercially reasonable efforts, subject to receipt of necessary information from the Investor Purchasers after prompt request from the Company Issuer to the Investors Purchasers to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statementas soon as practicable;
(c) use its best commercially reasonable efforts to cause such Registration Statement to remain continuously effective and prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “"Prospectus”") (and the applicable Exchange Act reports incorporated therein by reference, so filed on a timely basis) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceedingending on the date that is, with respect to each Investor’s Purchaser's Converted Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor Purchaser may sell all Converted Shares then held by the Investor Purchaser without restriction by the volume limitations of under Rule 144(e) of the Securities Act144(k), or (iiiii) such time as all Converted Shares purchased by such Investor Purchaser in this Offering have been sold pursuant to a registration statement;
(d) so long as a Purchaser holds Converted Shares, provide copies to and permit single legal counsel designated by the Purchasers to review the Registration Statement and all amendments and supplements thereto, no fewer than three business days prior to their filing with the SEC, and not file any Registration Statement, amendment or supplement thereto to which a holder of the Converted Shares reasonably objects in writing within such three business day period;
(e) furnish to the Investor Purchasers with respect to the Converted Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and preliminary Prospectuses ("Preliminary Prospectuses Prospectuses" and individually, "Preliminary Prospectus") in conformity with the requirements of the Securities Act and such other documents as the Investor Purchasers may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Converted Shares by the InvestorPurchasers; provided, however, that the obligation of the Company Issuer to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor Purchasers shall be subject to the receipt by the Company Issuer of reasonable assurances from the Investor Purchasers that the Investor Purchasers will comply with the applicable provisions of prospectus delivery requirements under 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;
(ef) file documents required of the Company Issuer for normal blue sky clearance in states specified in writing by the Investor Purchasers and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company Issuer is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c8.1(b); provided, however, that the Company Issuer shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(fg) bear all expenses in connection promptly notify the Purchasers after it receives notice of the time when the Registration Statement has been declared effective by the SEC, or when a supplement or amendment to any Registration Statement has been filed with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares pursuant to the Registration StatementSEC; and
(gh) advise the InvestorPurchasers, promptly promptly: (a) 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 best 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event ; and (b) at any time before the Registration Statement becomes effective with respect when a Prospectus relating to the Converted Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of is required to be delivered under the Securities Act, without upon discovery that, or upon the prior written consent happening of an event as a result of which, the Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a majority material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in interest light of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, circumstances then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SECexisting.
Appears in 1 contract
Samples: Securities Purchase Agreement (Contango Oil & Gas Co)
Registration Procedures and Other Matters. The If and when the Company is required by the provisions of Section 1 or 2 to qualify the distribution of Qualifiable Shares by prospectus, the Company shall:
(a) a. furnish to the Selling Holders' legal counsel, copies of the preliminary prospectus, prospectus, or any amendments or supplements thereto, which documents will be subject to receipt the comment and review of necessary information from the Investor after prompt request from Selling Holders and one legal counsel for all of the Company to the Investors to provide such information, Selling Holders;
b. prepare and file with the SEC, within 10 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day), a registration statement on Form S-3 (the “Registration Statement”) to enable the resale of the Shares by the Investors from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions;
(b) subject to receipt of necessary information from the Investor after prompt request from the Company amendments to the Investors to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c) use its best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus or other qualification document used in connection therewith (the “Prospectus”) with such secondary offering as may be necessary to keep enable the Registration Statement currentdistribution by way of secondary offering for a period of not less than one hundred and twenty (120) days (in the case of a qualification referred to in Section 2) or such period of time, not exceeding one hundred and eighty (180) days, as requested by the Selling Holders (in the case of a qualification referred to in Section 1) (or in any case such shorter period as shall be necessary under applicable securities laws to permit the Selling Holders to complete the distribution of the Qualifiable Shares to which such prospectus or other qualification document relates in accordance with its intended methods of distribution) and to comply with the provisions of Applicable Securities Laws of the Qualification Provinces with respect to the disposition of all Qualifiable Shares covered by the prospectus or other qualification document for the period required to effect the distribution thereof, but in no event shall the Company be required to do so for a period of more than one hundred and twenty (120) days (in the case of a qualification referred to in Section 2) or one hundred and eighty (180) days (in the case of a qualification referred to in Section 1) following the effective date of such prospectus or other qualification document;
c. furnish to the Selling Holders and free from the underwriter(s), if any, and to one legal counsel for all of the Selling Holders and the underwriter(s), such number of conformed copies of the prospectus (including each preliminary prospectus) and any amendments or supplements thereto, and any documents incorporated by reference therein, as the Selling Holders or such underwriter(s) may reasonably request in order to facilitate the disposition of the Qualifiable Shares being sold by the Selling Holders (it being understood that the Company consents to the use of the preliminary prospectus, the prospectus and any amendment or supplement thereto (including any documents incorporated by reference therein) by the Selling Holders and the underwriter(s), if any, in connection with the offering and sale of the Qualifiable Shares covered by the prospectus or any amendment or supplement thereto);
d. at any time when a prospectus relating to an offering of Qualifiable Shares is required to be delivered under Applicable Securities Laws of any province or territory of Canada, notify the Selling Holders and the underwriter(s), if any, when the Company becomes aware of the happening of any event as a result of which any prospectus or other qualification document (as then in effect) contains an untrue statement of a material misstatement fact or any omission to state a material fact for a period not exceedingrequired to be stated therein or necessary to make the statements therein, with respect to each Investor’s Shares purchased hereunder, the earlier of (i) the second anniversary in light of the Closing Datecircumstances under which they were made, (ii) not misleading and, thereafter, prepare and file pursuant to such Applicable Securities Laws and furnish a supplement or amendment to such prospectus so that, as thereafter delivered to the date on which purchasers of such Qualifiable Shares, such prospectus will not contain any untrue statement of a material fact or any omission to state a material fact required to be stated therein or necessary to make the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) statements therein, in light of the Securities Actcircumstances under which they were made, or not misleading. Notwithstanding the foregoing sentence, for an aggregate period of no more than sixty (iii60) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to days over a registration statement;
twelve (d12) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statementmonth period, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writing, 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 and use its best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify file any supplement or amendment to a prospectus, if at such time, the board of directors of the Company determines in good faith that taking such action would be seriously detrimental to the Company and its shareholders (and the Company provides to the Selling Holders a certificate of the Chief Executive Officer or Chief Financial Officer of the Company as to such). No Investor will, until a receipt for such supplement or amendment to such prospectus is obtained from the applicable Securities Commission under Applicable Securities Laws, effect sales of Qualifiable Shares or deliver any prospectus in respect of such sale;
e. subject to paragraph (b) above and subparagraph 1(f)(i), do business all such acts and things necessary to enable the distribution in all such jurisdictions of the Qualifiable Shares covered by the applicable prospectus or consent other qualification document for such period of time as is required to service complete the distribution contemplated by the offering contemplated by the prospectus or other qualification document;
f. cooperate with the Selling Holders and the lead underwriter or underwriters, if any, to facilitate the timely preparation and delivery of process certificates (not bearing any restrictive legends except to the extent required by law) representing securities to be sold pursuant to the prospectus or other qualification document, and to enable such securities to be in such denominations and registered in such names as the lead underwriter or underwriters, if any, or any Investor may request;
g. enter into such customary agreements (including an underwriting or similar such agreement in customary form, including customary standstill provisions), and take all such other actions (including, without limitation, delivery of customary legal opinions and officers' certificates) as the Selling Holders or the underwriters reasonably request in order to expedite or facilitate the disposition of such Qualifiable Shares;
h. make available for inspection by the Selling Holders and any underwriter participating in any jurisdiction in which distribution pursuant to such prospectus or other qualification document, and any one law firm, accountant or other agent retained by all of the Selling Holders or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, as shall be reasonably necessary to enable it is not now so qualified or has not so consentedto exercise its due diligence responsibility provided such parties, if requested, have entered into a confidentiality agreement with the Company, as applicable;
i. use its reasonable best efforts to obtain a long-form comfort letter from the Company's independent auditor and legal opinion of the Company's counsel in customary form and covering such matters of the type customarily covered by such comfort letters and opinions as the Selling Holders or the underwriter reasonably request;
j. in the event of the issuance of any order or ruling suspending the effectiveness of a prospectus receipt or of any order suspending or preventing the use of any prospectus or suspending the qualification of any securities qualified by such prospectus for sale in any jurisdiction, including, where the offering is being made, under the multijurisdictional disclosure system or any replacement thereof (f"MJDS"), in the United States, or any event or circumstance which, in the good faith judgment of the Company's Chief Executive Officer and Chief Financial Officer, makes it advisable to make any changes in a prospectus, or any document incorporated or deemed to be incorporated therein by reference, so that the prospectus will not contain any untrue statement of a material fact or any omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Company will notify the Selling Holders of such event and use all reasonable commercial efforts promptly to obtain the withdrawal of such order or ruling. Notwithstanding the foregoing sentence, for an aggregate period of no more than 60 days over any 12 month period, the Company shall not be required to file any document or make any public disclosure necessary to end such an event, if at such time, the board of directors of the Company determines in good faith that taking such action would be seriously detrimental to the Company and its shareholders (and the Company provides to the Selling Holders a certificate of the Chief Executive Officer or Chief Financial Officer of the Company as to such). No Investor will (until further notice) effect sales thereof or deliver any prospectus in respect of such sale after notification by the Company to the Selling Holders under this paragraph (j); and
k. bear all reasonable expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts 1 or commissions, brokers’ fees 2 hereof and similar selling expenses, and any other fees or expenses incurred by to qualify the Investor, including attorneys’ fees) and the registration distribution of the Qualifiable Shares pursuant to the Registration Statement; and
(g) advise prospectus, including the Investor, promptly after it shall receive notice or obtain knowledge fees of one legal counsel for all of the issuance of any stop order by Selling Holders not to exceed US$25,000 in the SEC delaying or suspending the effectiveness of the aggregate for each prospectus and Registration Statement or of (as defined in the initiation or threat of any proceeding for that purpose; and it will promptly use its 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. Notwithstanding anything to the contrary herein, the US Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SECRights Agreement).
Appears in 1 contract
Samples: Qualification Rights Agreement (Electrum Strategic Resources LLC)
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide each Purchaser for inclusion in such informationfiling, prepare and file with the SEC, within 10 180 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)Initial Closing, a registration statement on Form S-3 (the “"Registration Statement”") to enable covering the resale of Securities held by each Purchaser, or the Shares by the Investors Holders (defined in Section 7.4 below), from time to time through time, in compliance with the automated quotation system of the Nasdaq National Market or in privately-negotiated transactionsSecurities Act;
(b) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, use its reasonable best efforts to cause the Registration Statement to become effective within 45 days as promptly as practicable after the Registration Statement is filed by the Companyfiling, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “"Prospectus”") as may be necessary to keep the Registration Statement current, continuously effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares purchased hereunderHolder's Securities, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor each Holder may sell all Shares Securities then held by the Investor such Holder without restriction by the volume limitations of Rule 144(e) of the Securities Act, Act or (iiiii) such time as all Shares Securities purchased by such Investor in this Offering Holder have been sold pursuant to a registration statementstatement or are otherwise freely tradeable;
(d) furnish to the Investor each Holder with respect to the Shares Securities registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor such Holder may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Shares Securities by the Investorsuch Holder; provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor such Holder shall be subject to the receipt by the Company of reasonable assurances from the Investor such Holder that the Investor such Holder will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor each Holder and use its reasonable best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c7.3(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) 7.3 and the registration of the Shares Securities pursuant to the Registration Statement; andStatement (provided that the Holders shall bear the cost of all underwriting discounts and selling commissions and similar fees applicable to the sale of Securities and all fees and expenses of legal counsel for any Holder and all transfer taxes);
(g) advise the Investor, each Holder promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation or threat of any proceeding for that purpose; and it will promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued; and
(h) use its reasonable best efforts to cause the Common Stock underlying the Shares and the Warrants to be listed on the Nasdaq National Market in connection with the filing of the Registration Statement. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SECSecurities.
Appears in 1 contract
Registration Procedures and Other Matters. The Company shall:: ---------------------------------------------
(a) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 50 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)Date, a registration statement on Form S-3 (the “"Registration Statement”") to enable the resale of the Shares by the Investors from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions;
(b) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 30 days after the Registration Statement is filed by the Company, Company such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 4530-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c) use its best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “"Prospectus”") as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s 's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statementsold;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses Statement and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, 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 and use its best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the 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 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities ActS-8, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, 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: Purchase Agreement (Lifecell Corp)
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors Investor to provide such information, prepare and file with the SEC, within 10 15 business days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day“Filing Date”), a registration statement on Form S-3 (the “Registration Statement”) to enable the resale of the Shares and the Warrant shares by the Investors from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions;
(b) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, use its best reasonable commercial efforts to cause the Registration Statement to become effective within 45 days on or prior to the 70th calendar day after the Closing Date (the “Required Effective Date”). However, so long as the Company filed the Registration Statement is filed by the CompanyFiling Date, such efforts to includeif the Registration Statement receives Commission review, without limiting then the generality of Required Effective Date will be the foregoing, preparing and filing with one hundred tenth (110th) calendar day after the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration StatementClosing Date;
(c) use its best reasonable commercial efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus Prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares purchased hereunderand Warrant Shares, the earlier of (i) the second fifth 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 the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares, and Warrant Shares issuable pursuant to the Warrant, purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares and Warrant Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, 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 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 and use its best reasonable commercial efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ feesattorney fees of the Investor) and the registration of the Shares and Warrant Shares pursuant to the Registration Statement; and;
(g) advise the 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 best reasonable commercial 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) provide a “Plan of Distribution” section of the Registration Statement in the form attached hereto as Exhibit A. Notwithstanding anything to the contrary herein, except for the Existing Registrable Shares the Registration Statement shall cover only the Shares and Warrant Shares. In no event at any time before the expiration of ninety (90) days after the effectiveness of the Registration Statement becomes effective with respect to the Shares and Warrant Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities ActS-8, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but if the SEC deems the Investor being deemed to be an underwriter by the SEC Company shall not relieve the Company be relieved of any obligations it has hereunder; provided, however, however that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Samples: Securities Purchase Agreement (Sirna Therapeutics Inc)
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 30 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day“Filing Date”), a registration statement on Form S-3 S-1 (the “Registration Statement”) to enable the resale of the Shares and the Warrant Shares by the Investors from time to time through in compliance with the automated quotation system of the Nasdaq National Market or in privately-negotiated transactionsSecurities Act;
(b) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 days on or prior to the sixtieth (60th) day after the Closing Date (the “Required Effective Date”). However, so long as the Company filed the Registration Statement is filed by the CompanyFiling Date, such efforts to includeif the Registration Statement receives SEC review, without limiting then the generality of Required Effective Date will be the foregoing, preparing and filing with ninetieth (90th) calendar day after the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration StatementClosing Date;
(c) use its best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement in compliance with applicable laws, and the prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares purchased hereunderhereunder and Warrant Shares issued pursuant to the Warrants, the earlier 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 the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering offering and Warrant Shares issued to such Investor pursuant to the Warrants have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares and Warrant Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, 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 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 and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e), (h) and the last paragraph of this Section 7.1 and the registration of the Shares and Warrant Shares pursuant to the Registration Statement (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, expenses and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares pursuant to the Registration Statement; and);
(g) advise the 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 best 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) include in the Registration Statement a “Plan of Distribution” section substantially in the form attached hereto as Exhibit A. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares and the Warrant Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares and the Warrant Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities ActS-8, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, 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. Within three business days of the effectiveness date of the Registration Statement, the Company shall give notice to the Investor of such effectiveness and use its commercially reasonable efforts to cause its counsel to issue an appropriate opinion or opinions to the transfer agent substantially to the effect that the shares are subject to an effective registration statement and can be reissued free of restrictive legend in accordance with provisions of Section 7.6.
Appears in 1 contract
Registration Procedures and Other Matters. (a) The Company shall:
(ai) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 30 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)Date, a registration statement on Form S-3 (S-3, or, if the “Registration Statement”) Company is not then eligible to register the Shares for resale on Form S-3, on another appropriate form in accordance with the Securities Act and the Exchange Act, to enable the resale of the Shares and the Warrant Shares by the Investors from time in an offering to time through be made on a continuous basis pursuant to Rule 415 under the automated quotation system of Securities Act (such registration statement being referred to herein as the Nasdaq National Market or in privately-negotiated transactions;
(b) subject “Initial Registration Statement” and each registration statement required to receipt of necessary information from be filed under this Section 7.1 being referred to herein as a “Registration Statement”), provided, however, that the Company shall not be required to include on such Initial Registration Statement any Shares held by any Investor who has not submitted to the Company a completed Investor Questionnaire and Registration Statement Questionnaire and has not provided, after prompt request from the Company Company, such other information as may be required under the Securities Act in connection with the filing of the Initial Registration Statement;
(ii) subject to the Investors to provide such informationclause (i) of this Section 7.1(a), use its best commercially reasonable efforts to cause the Initial Registration Statement to become effective within 45 days 90 days, or, if the Initial Registration Statement becomes subject to review, 120 days, after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration StatementClosing Date;
(ciii) use its best commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to the a Registration Statement and in compliance with applicable laws, the prospectus used in connection therewith (the “Prospectus”) and any document incorporated by reference therein as may be necessary to keep the such Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares purchased hereunderhereunder and the Warrant Shares purchased under the Warrant, the earlier of (i1) the second anniversary of fifty months after the Closing Date, (ii2) the date on as of which the Investor may sell all of the Shares and Warrant Shares then held by the Investor without restriction by or limitation pursuant to Rule 144 and without the volume limitations of requirement to be in compliance with Rule 144(e144(c)(1) of (or any successor thereto) under the Securities Act, or Act and (iii3) such time as all Shares purchased by such Investor in this Offering offering and Warrant Shares issuable pursuant to the Warrant and, in each case, covered by the Registration Statement, have been sold pursuant to a registration statementsold;
(div) furnish to the Investor with respect to the Shares and Warrant Shares registered under the a Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, 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 the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(ev) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the any Registration Statement pursuant to Section 7.1(c7.1(a)(iii); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(fvi) bear all expenses in connection with the procedures in paragraph clauses (ai) through (ev) and clause (viii) of this Section 7.1 7.1(a), the procedures in Sections 7.1(d) and the registration of the Shares and Warrant Shares pursuant to a Registration Statement (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, expenses and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares pursuant to the Registration Statement); and
(gvii) advise the 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 a Registration Statement or of the initiation or threat of any proceeding for that purpose; and it will and, subject to Section 7.1(c), promptly use its best 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. ;
(viii) promptly following the date on which any Registration Statement is declared effective by the SEC, the Company shall file with the SEC in accordance with Rule 424 under the Securities Act, if required thereunder, the final prospectus to be used in connection with sales pursuant to such Registration Statement; and
(ix) at least two (2) days prior to the filing of each Registration Statement, provide a “Plan of Distribution” and “Selling Stockholders” section of such Registration Statement to the Investor for such Investor’s review and comment which, at a minimum, states that the selling stockholders may transfer the shares of common stock in various circumstances, including circumstances in which the transferees, pledgees or other successors in interest may be the selling beneficial owners for purposes of the Prospectus.
(b) Notwithstanding anything to the contrary herein, from the date hereof until the effective date of the Initial Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall Statement, the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Actshall not, without the prior written consent of the holders of a majority in interest of the InvestorsShares issued and sold in the Offering, prepare and file with the SEC a registration statement relating to an offering for its own account or the account of others under the Securities Act of any of its equity securities, other than any registration statement or post-effective amendment to a registration statement (or supplement thereto) relating to the Company’s employee benefit plans registered on Form S-8. In no event shall the Company include any securities other than the Shares and the Warrant Shares on any Registration Statement without the prior written consent of the holders of a majority of the Shares issued and sold in the Offering.
(c) Notwithstanding anything to the contrary herein, if at any time the SEC takes the position that the offering of some or all of the Shares or Warrant Shares in the Initial Registration Statement is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 as a result of a characterization by the SEC of the transaction described by the Registration Statement as a primary offering by the Company, the Company shall use commercially reasonable efforts to persuade the SEC that the offering contemplated by the Registration Statement is a valid secondary offering and not an offering “by or on behalf of the issuer” as defined in Rule 415. In the event that, despite the Company’s commercially reasonable efforts and compliance with the terms of this Section 7.1(c), the SEC refuses to alter its position, the Company shall remove from the Initial Registration Statement such portion of the Shares and/or Warrant Shares (the “Cut Back Shares”) as the SEC may require to assure the Company’s compliance with the requirements of Rule 415; provided, however, that the Company shall have no liability to any Investor pursuant to Section 7.6 or otherwise as a result of the failure to register any Shares or Warrant Shares as a result of the SEC’s application of Rule 415 (including as a result of the SEC requiring an investor to be identified as an underwriter in a Registration Statement or other public disclosure or filing with the SEC) despite the Company’s commercially reasonable efforts to persuade the SEC that the offering contemplated by the Registration Statement is a valid secondary offering and not an offering “by or on behalf of the issuer” as defined in Rule 415. Any Shares or Warrant Shares not able to be included in the Initial Registration Statement shall reduce the total number of Shares and Warrant Shares of each Investor covered by the Initial Registration Statement on a pro-rata basis based on the total number of Shares and Warrant Shares issued or issuable to each Investor. For the purpose of determining the Cut Back Shares, first the Warrant Shares shall be excluded until all of the Warrant Shares have been excluded. The Company shall have no liability to any Investor acknowledges and agrees pursuant to Section 7.6 or otherwise as a result of the filing of an Initial Registration Statement covering less than all of the Shares under the circumstances described in this Section 7.1(c). As soon as practicable following such intervening period of time as shall be required by the SEC (if specifically advised in writing by the SEC) or SEC guidance prior to the filing thereof, the Company shall file one or more additional registration statements covering the resale of as many Cut Back Shares allowed by the SEC (if specifically advised in writing by the SEC) or SEC guidance to be so registered while maintaining the Company’s compliance with Rule 415 (each, an “Additional Registration Statement”); provided, that the Company shall not be regarded required to have breached file more than three Additional Registration Statements under this Agreement. The Company shall use its “best efforts” obligation under Section 7.1(b) if, owing commercially reasonable efforts to a review file each Additional Registration Statement on or prior to 10 business days after such day that represents the first opportunity that the SEC allows the Additional Registration Statement to be filed without the offering of the shares registered thereunder being deemed a primary offering (the “Additional Registration Statement by the SEC staff, the Filing Eligibility Day”) and cause each Additional Registration Statement does not become to be declared effective within 45 no later than, as applicable (a) five business days after the Company receives notice from the SEC that the Additional Registration Statement will not become subject to review or (b) if the Additional Registration Statement becomes subject to review by the SEC, 90 days after the filing thereof. With regard to any such Additional Registration Statement, all of the provisions of this Section 7.1(c) shall again be applicable to the Cut Back Shares. The Company shall give the Investors prompt notice of the amount of Shares excluded from each Additional Registration Statement. Each Registration Statement shall be on Form S-3 (except if the Company is filed not then eligible to register for resale the Shares on Form S-3, in which case such registration shall be on another appropriate form in accordance with the Securities Act and the Exchange Act). Neither the Company nor any Subsidiary or affiliate thereof shall identify the Investor as an underwriter in any public disclosure or filing with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of Nasdaq or any obligations it has hereunderother trading market; provided, however, that if the Company receives notification from shall have no liability to such Investor pursuant to Section 7.6 or otherwise as a result of the SEC failure to register any Shares or Warrant Shares as a result of such Investor refusing to be so named.
(d) Within two business days of the effectiveness date of any Registration Statement, the Company shall give notice to the Investor of such effectiveness and cause its counsel to issue an appropriate opinion or opinions to the transfer agent substantially to the effect that the shares are subject to an effective registration statement and can be reissued free of restrictive legend upon notice of a sale by an Investor is deemed an underwriterand confirmation by such Investor that it has complied with the prospectus delivery requirements in the form attached hereto as Exhibit A, then the period by which provided that the Company is obligated to submit an acceleration request to has not advised the SEC shall be extended to transfer agent orally or in writing that 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 SECopinion has been withdrawn.
Appears in 1 contract
Samples: Stock and Warrant Purchase Agreement (Inhibitex, Inc.)
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor Investors, as set forth in the Selling Stockholder Notice and Questionnaire attached as Exhibit C hereto, after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 days after the first business day following the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)Date, a registration statement on Form S-3 (the “Registration Statement”) to enable the resale of the Shares and the Warrant Shares by the Investors from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions;
(b) subject to receipt of necessary information from the Investor Investors, as set forth in the Selling Stockholder Notice and Questionnaire attached as Exhibit C hereto, after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 60 days after the Registration Statement is filed by the Company, Company such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 4560-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c) use its best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares purchased hereunderhereunder and Warrant Shares purchased under the Warrant, the earlier of (i) the second anniversary of two years after 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 the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering and Warrant Shares issuable pursuant to the Warrant have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares and Warrant Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, 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 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 and use its best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares and Warrant Shares pursuant to the Registration Statement; and
(g) advise the 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 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares and the Warrant Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares and the Warrant Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities ActS-8, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 60 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but if the SEC deems the Investor being deemed to be an underwriter by underwriter, the SEC Company shall not relieve the Company be relieved of any obligations it has hereunder; provided, however, however that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SEC. Within five business days of the effectiveness date of the Registration Statement, the Company shall cause its counsel to issue a blanket opinion to the transfer agent stating that the shares are subject to an effective registration statement and can be reissued free of restrictive legend upon notice of a sale by an Investor and confirmation by such Investor that it has complied with the prospectus delivery requirements, provided that the Company has not advised the transfer agent orally or in writing that the opinion has been withdrawn.
Appears in 1 contract
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 90 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day“Filing Date”), a registration statement on Form S-3 (the “Registration Statement”) to enable the resale of the Shares by the Investors from time to time through in compliance with the automated quotation system Securities Act. If the Company does not meet the requirements for the use of Form S-3, the Nasdaq National Market Company shall use such other form as is available for such a registration, and shall convert such other form to Form S-3, or in privately-negotiated transactionsfile a replacement registration statement on Form S-3, promptly after the first date on which it meets such requirements;
(b) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 days on or prior to the 90th day after the Closing Date (the “Required Effective Date”). However, so long as the Company filed the Registration Statement is filed by the CompanyFiling Date, such efforts to includeif the Registration Statement receives SEC review, without limiting then the generality of Required Effective Date will be the foregoing, preparing and filing with 120th calendar day after the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration StatementClosing Date;
(c) use its best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement in compliance with applicable laws, and the prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period 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 without restriction by the volume limitations of in any three month period pursuant to Rule 144(e) of the Securities Act144, or and (iiiii) such time as all Shares purchased by such Investor the Investors in this Offering offering have been sold pursuant to a registration statementstatement (such earlier date, the “Registration Withdrawal Date”);
(d) furnish to the each Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, 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 and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e), (h) and the last paragraph of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, expenses and any other fees or expenses incurred by the Investor, including attorneys’ fees) fees except that the Company will pay the reasonable and the registration customary fees and expenses of the Shares pursuant one counsel to the Registration Statement; andselling Investors in connection with each registration), subject to the limitation set forth in Section 18 below;
(g) advise the InvestorInvestors, promptly (i) in writing of the existence of any fact or the happening of any event (but not as to the substance of any such fact or event), that makes any statement of a material fact made in the Registration Statement, the Prospectus, any amendment or supplement thereto, or any document incorporated by reference therein untrue, or that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading; provided, however, that no notice by the Company shall be required pursuant to this subsection (i) in the event that the Company either contemporaneously files a prospectus supplement to update the Prospectus or a Form 8-K or other appropriate Exchange Act report that is incorporated by reference into the Registration Statement, which, in either case, contains the requisite information with respect to such material event that results in such Registration Statement no longer containing any such untrue or misleading statements; and (ii) 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 best 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) include in the Registration Statement a “Plan of Distribution” section substantially in the form attached hereto as Exhibit A. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares and any securities issued in exchange or replacement for, or on or with respect to the Shares, whether as a dividend or other distribution, or otherwise. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities ActS-8, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that each of the Investor Investors disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, 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. Within one business days of the effectiveness date of the Registration Statement, the Company shall give notice to the Investor of such effectiveness and use its commercially reasonable efforts to cause its counsel to issue an appropriate opinion or opinions to the transfer agent substantially to the effect that the shares are subject to an effective registration statement and can be reissued free of restrictive legend in accordance with provisions of Section 7.6. The Company shall supply legal counsel selected by the selling Investors with the portion of each Registration Statement containing “Selling Stockholders” information prior to filing with the Commission to afford counsel a reasonable opportunity to review such information. The Company shall reasonably cooperate with such legal counsel in performing the Company’s obligations under this Section 7.
Appears in 1 contract
Registration Procedures and Other Matters. The Company shall:
(a) a. subject to receipt of necessary information from the Investor Purchasers after prompt request from the Company to the Investors Purchasers to provide such information, (i) prepare and file with the SEC, within 10 45 days after the Closing Date (orfiling of the Company’s Form 10-KSB for the year ended December 31, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)2007, a registration statement on Form S-3 SB-2 (the “Registration Statement” and the date of filing of the Registration Statement, the “Filing Date”) to enable the public, unrestricted resale of the Shares and the Warrant Shares (and shall include in the Registration Statement or promptly file an amendment to the Registration Statement to register any Additional Shares or Warrant Shares issued pursuant to Section 1.3, shares of Common Stock issued pursuant to this Section 3.1(a), and shares of Common Stock (or other securities convertible into Common Stock) issued pursuant to Section 4.6 (collectively, the “Subsequent Shares”)) by the Investors Purchasers from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions;
(b) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such informationtime, and shall use its best efforts to cause ensure that the Registration Statement is declared effective by the earlier of July 29, 2008 or 120 days after the Filing Date if the Securities and Exchange Commission (the “SEC”) does not undertake a review of the Registration Statement (a “Review”) or by the earlier of August 28, 2008 or 150 days after the Filing Date if the SEC does undertake a Review (the applicable date by which effectiveness is to become be achieved being herein referred to as the “Effectiveness Due Date”), and (ii) if the Registration Statement is not declared effective within 45 days by the Effectiveness Due Date, then the number of Shares sold to the Purchasers pursuant to this Agreement shall be increased by one percent (1%) for the 30-day period beginning on the day after the Registration Statement is filed by the Company, such efforts was to include, without limiting the generality of the foregoing, preparing be declared effective and filing with the SEC in such 45two percent (2%) for each 30-day period any financial statements thereafter until the Registration Statement is declared effective; provided, however, that are required the maximum number of shares to be filed prior issued under this Section 3.1(a) shall be 10% of the number originally purchased pursuant to this Agreement. All Shares to effect Section 3.1(a)(ii) will be delivered to the effectiveness Purchasers within ten days of such Registration Statement;each delinquency.
(c) b. use its best reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each InvestorPurchaser’s Shares, Warrant Shares purchased hereunderand Subsequent Shares, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor Purchasers may sell all Shares, Warrant Shares and Subsequent Shares then held by the Investor without restriction by the volume limitations of Purchasers under Rule 144(e144(k) of under the Securities Act, or (iiiii) such time as all Shares, Warrant Shares purchased by such Investor in this Offering and Subsequent Shares have been sold pursuant to a registration statementby the Purchasers;
(d) c. furnish to the Investor Purchasers with respect to the Shares, Warrant Shares and Subsequent Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses preliminary Prospectuses, if applicable, in conformity with the requirements of the Securities Act and such other documents as the Investor Purchasers may reasonably request in writinglight of then existing securities laws, rules and regulations, in order to facilitate the public sale or other disposition of all or any of the Shares, Warrant Shares or Subsequent Shares by the InvestorPurchasers; provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses preliminary Prospectuses, if applicable, to the Investor Purchasers shall be subject to the receipt by the Company of reasonable assurances from the Investor Purchasers that the Investor Purchasers will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary preliminary Prospectuses;
(e) d. file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor Purchasers and use its best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c3.1(b); 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) e. bear all expenses in connection with the procedures in paragraph (a) through (ed) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) 3.1 and the registration of the Shares, Warrant Shares and Subsequent Shares pursuant to the Registration Statement; and
(g) f. advise the Investor, Purchasers promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation or threat of any proceeding for that purpose; and it will promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor each Purchaser disclaims being an underwriter, but the Investor that any Purchaser being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, however that if the Company receives notification from the SEC that the Investor any Purchaser 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: Securities Purchase Agreement (Health Discovery Corp)
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor Investors, as set forth in the Selling Stockholder Notice and Questionnaire attached as Exhibit C hereto, after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day), a registration statement on Form S-3 (the “Registration Statement”) to enable the resale of the Shares and the Warrant Shares (or such additional shares of Common Stock as may be issuable to the Investor pursuant to Rule 416 of the Securities Act) by the Investors from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions;
(b) subject to receipt of necessary information from the Investor Investors, including the Selling Stockholder Notice and Questionnaire attached as Exhibit C hereto, after prompt request from the Company to the Investors to provide such information, (i) use its best efforts to cause the Registration Statement to become effective within 45 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement, and (ii) (A) request that the Registration Statement becomes effective as of 5:00 p.m.(EST) on such date as the Company requests effectiveness of the Registration Statement and (B) electronically deliver to the Investor a final copy of the Prospectus (as defined below) prior to the commencement of trading at the Nasdaq National Market on the business day immediately after the date on which the Registration Statement becomes effective;
(c) use its best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares purchased hereunderhereunder and Warrant Shares purchased under the Warrant, the earlier of (i) the second anniversary of two years after 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 the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering and Warrant Shares issuable pursuant to the Warrant have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares and Warrant Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, 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 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 and use its best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e), (h) and the last paragraph of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares and Warrant Shares pursuant to the Registration Statement; and;
(g) advise the 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 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) provide a “Plan of Distribution” section of the Registration Statement that is acceptable to all Investors and which, at a minimum, states that the selling stockholders may transfer the shares of common stock in various circumstances, in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of the Prospectus. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares and the Warrant Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares and the Warrant Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities ActS-8, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but if the SEC deems the Investor being deemed to be an underwriter by underwriter, the SEC Company shall not relieve the Company be relieved of any obligations it has hereunder; provided, however, however that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SEC. Within five business days of the effectiveness date of the Registration Statement, the Company shall cause its counsel to issue a blanket opinion to the transfer agent stating that the shares are subject to an effective registration statement and can be reissued free of restrictive legend upon notice of a sale by an Investor and confirmation by such Investor that it has complied with the prospectus delivery requirements, provided that the Company has not advised the transfer agent orally or in writing that the opinion has been withdrawn.
Appears in 1 contract
Samples: Stock and Warrant Purchase Agreement (Rita Medical Systems Inc)
Registration Procedures and Other Matters. The Company shall:
(a) use its reasonable best efforts, subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 not later than 60 days after from the Closing Termination Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day“Filing Date”), a registration statement on Form S-3 SB-2 or such other successor form (except that if the Company is not then eligible to register for resale the Registrable Securities (as defined below) on Form SB-2, in which case such registration shall be on any form available for registration) (the “Registration Statement”) to enable the resale of the Shares shares of Common Stock underlying the Preferred Stock and the shares of Common Stock underlying the Warrants (the “Registrable Securities”) by the Investors from time to time through the automated OTCBB quotation system of the Nasdaq National Market or in other privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 effective, not later than 120 days after from the Registration Statement is filed by Termination Date (the Company“Effectiveness Date”), such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45120-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares Registrable Securities purchased hereunder, the earlier of (i) the second anniversary of the final Closing Datedate, (ii) the date on which the Investor Investors may sell all Shares Registrable Securities then held by the Investor Investors without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares Registrable Securities purchased by such Investor the Investors in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor Investors with respect to the Shares Registrable Securities registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses prospectuses and Preliminary Prospectuses preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor Investors may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Shares Registrable Securities by the InvestorInvestors; provided, however, that the obligation of the Company to deliver copies of Prospectuses prospectuses or Preliminary Prospectuses preliminary prospectuses to the Investor Investors shall be subject to the receipt by the Company of reasonable assurances from the Investor Investors that the Investor Investors will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses prospectuses or Preliminary Prospectuses;preliminary prospectuses.
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor Investors and use its reasonable best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); 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) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the SEC under the Securities Act and the Exchange Act, and take such other actions as may be reasonably necessary to facilitate the registration of the Registrable Securities hereunder;
(g) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares Registrable Securities pursuant to the Registration Statement; and
(gh) advise the InvestorInvestors, 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 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. Notwithstanding anything With a view to making available to the contrary hereinInvestors 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 Investors to sell Registrable Securities to the public without registration, the Registration Statement Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the 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 Investors’ Registrable Securities shall cover only have been resold; (ii) file with the SharesSEC 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 Investors upon request, as long as the Investors owns any Registrable Securities, (A) a written statement by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act; (B) a copy of the Company’s most recent Annual Report on Form 10-KSB or Quarterly Report on Form 10-Q-SB and (C) such other information as may be reasonably requested in order to avail the Investors of any rule or regulation of the SEC that permits the selling of such Registrable Securities without registration. In no event at any time before the initial Registration Statement becomes effective with respect to the Shares Units shall the Company publicly announce or file any other registration statement, other than (i) registrations on Form S-8 or for transactions covered by Rule 145 and (ii) maintaining the effectiveness of the Securities Actcurrently effective registration statements of the Company, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims Investors disclaim being an underwriterunderwriters, but the an Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided. In the event the SEC determines any Registration Statement filed pursuant hereto constitutes a primary offering of securities by the Company and/or requires any Investor to be named as an underwriter, howeverInvestors understand and agree the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Investor, and the Company shall not be required to pay any penalty, financial or otherwise to any Investor. In the event of such reduction, the affected Investors shall have demand registration rights until such time as: (i) all Registrable Securities have been registered pursuant to an effective Registration Statement, (ii) the Registrable Securities may be resold without restriction pursuant to Rule 144 of the Act or (iii) the Investor agrees to be named as an underwriter in any such registration statement. Investors acknowledge and agree the provisions of this paragraph may apply to more than one Registration Statement and that if the SEC may limit or condition any subsequent Registration Statement. If the Company receives notification notice from the SEC that the it deems any 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 notify all Investors of same within five (i5) the 90th day after such SEC notification, or (ii) 120 business days after the initial filing of the Registration Statement with the SECdate of receipt of such notice. In no event will any registered holder of Registrable Securities be entitled to receive a net-cash settlement in lieu of physical settlement in shares of Common Stock, regardless of whether any of such holder’s Registrable Securities are registered pursuant to an effective registration statement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Power Efficiency Corp)
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor Purchasers after prompt request from the Company to the Investors Purchasers to provide such required Purchaser information, prepare and file with the SEC, within 10 90 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)Settlement Date, a registration statement on Form S-3 (the “Registration Statement”) to enable the resale of the Shares by the Investors from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactionsPurchasers;
(b) subject to receipt of necessary information from the Investor Purchasers after prompt request from the Company to the Investors Purchasers to provide such required Purchaser information, use its best commercially reasonable efforts to cause the Registration Statement to become effective within 45 90 days after the Registration Statement is filed by Settlement Date; provided, however, that if the Company, such efforts to include, without limiting the generality of the foregoing, preparing and filing Company has an outstanding confidential treatment request (“CTR”) application on file with the SEC in such 45-day period any financial statements as of the date the SEC provides notice that are required it has not further comments, then the Company shall use its commercially reasonable efforts to be filed prior to clear the CTR with the SEC and shall submit a request for acceleration of effectiveness of such the Registration StatementStatement within two business days following clearance of the CTR by the SEC;
(c) use its best commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith related thereto (the “Prospectus”) used in connection therewith as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each InvestorPurchaser’s Shares purchased hereunderShares, until the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor Purchaser may sell all Shares then held by the Investor Purchaser without restriction by the volume limitations of Rule 144(e) 144 of the Securities Act, or (iiiii) such time as all Shares purchased by such Investor in Purchaser pursuant to this Offering Agreement have been sold pursuant to a registration statement;
(d) comply with any prospectus publication requirement then applicable to it and furnish to the Investor each Purchaser with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses (and Preliminary Prospectuses preliminary Prospectuses) in conformity with the requirements of the Securities Act and such other documents as the Investor such Purchaser may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investorsuch Purchaser; provided, however, that the obligation of the Company to deliver copies of Prospectuses (or Preliminary Prospectuses preliminary Prospectuses) to the Investor Purchaser shall be subject to the receipt by the Company of reasonable assurances from the Investor Purchaser that the Investor Purchaser will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses (or Preliminary preliminary Prospectuses);
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor Purchaser and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c6.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 6.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees (including attorneys’ fees) or expenses incurred by the Investor, including attorneys’ feesPurchaser) and the registration of the Shares pursuant to the Registration Statement; and;
(g) advise the InvestorPurchaser, 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 best 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 ; and
(h) provide a “Plan of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best effortsDistribution” obligation under Section 7.1(b) if, owing to a review section of the Registration Statement by in the SEC staffform reasonably acceptable to the Company, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SECPurchaser, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable dateand each Other Purchaser. The Company understands that the Investor Purchaser disclaims being an underwriter, but if the Investor being deemed SEC deems the Purchaser to be an underwriter by the SEC Company shall not relieve the Company be relieved of any obligations it has hereunder; provided, however, however that if the Company receives notification from the SEC that the Investor Purchaser 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 45th 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: Common Stock Purchase Agreement (World Energy Solutions, Inc.)
Registration Procedures and Other Matters. The Company shall:
(a) upon request from the Investor, subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors Investor to provide such information, prepare and file with the SEC, within 10 90 days after the Closing Date (or, if of such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)request, a registration statement on Form S-3 such form as is then available to the Company (the “Registration Statement”) to enable the resale of the Common Shares, Conversion Shares and the Warrant Shares (referred to collectively herein as, the “Registrable Securities”) by the Investors from time to time through the automated quotation system of the Nasdaq National Market OTC Bulletin Board or in privately-negotiated transactionstransactions or through the facilities of any securities exchange or securities trading platform through which the Common Stock is traded, quoted or otherwise included for offer or sale;
(b) use its reasonable commercial efforts, subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors Investor to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statementeffective;
(c) use its best commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares Securities purchased hereunder, the earlier of the date that (i) all Registrable Securities covered by such Registration Statement have been sold, (ii) all Registrable Securities may be sold without volume or manner-of-sale restrictions pursuant to Rule 144, without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the transfer agent and the affected Investors, or (iii) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish (which may be furnished electronically) to the Investor with respect to the Shares Registrable Securities registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses prospectuses and Preliminary Prospectuses preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, 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 prospectuses or Preliminary Prospectuses 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 prospectuses or Preliminary Prospectusespreliminary prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c8.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) 8.1 and the registration of the Shares Registrable Securities pursuant to the Registration StatementStatement except with respect to any legal or attorney fees incurred by any of the Investors in connection with the Registration Statement and any amendments thereto, the Company shall be required to bear the fees and expenses of only one such legal counsel for all of the Investors and the amount of such fees and expenses for which the Company is responsible shall not exceed $10,000; and
(g) advise the InvestorInvestor (which advisement may occur electronically), 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 best 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. Notwithstanding anything to The Investor acknowledges that the contrary herein, Company may include on the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall Statement; shares of Common Stock of the Company publicly announce or for resale by certain other stockholders of the Company, and that the Company may file any a subsequent registration statement for the resale of shares of Common Stock by certain other stockholders of the Company. Until such time as the Company has included the Investor’s Registrable Securities in a Registration Statement, if the Company determines to file a subsequent registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of statement under the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of each such reviewinstance, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that give the Investor disclaims being an underwriternotice of its plans to file such registration statement no less than 5 days and no more than 60 days prior to the filing thereof, but shall afford the Investor being deemed an underwriter by the SEC shall not relieve opportunity to have any of its Registrable Securities registered for resale pursuant to such registration statement and, upon the Company request 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 notice to the SEC Company, shall include in such registration statement such of the Investor’s Registrable Securities as the Investor so requests be extended so included therein. For purposes of this Agreement, the all references to the earlier term “Registration Statement” shall include each of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing registration statements which purport to register Registrable Securities of the Registration Statement with the SECInvestor.
Appears in 1 contract
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 days after as soon as reasonably practicable following the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)Date, a registration statement on Form S-3 such form as is then available to the Company (the “Registration Statement”) to enable the resale of the Common Shares, Conversion Shares and the Warrant Shares (referred to collectively herein as, the “Registrable Securities”) by the Investors from time to time through the automated quotation system of the Nasdaq National Market OTC Bulletin Board or in privately-negotiated transactions;
(b) use its commercially reasonable efforts, subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statementeffective;
(c) use its best commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares Securities purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares Registrable Securities then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased Registrable Securities acquired by such Investor through the sale of the Securities in this Offering have been sold pursuant to a registration statement;
(d) furnish (which may be furnished electronically) to the Investor with respect to the Shares Registrable Securities registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses prospectuses and Preliminary Prospectuses preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, 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 prospectuses or Preliminary Prospectuses 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 prospectuses or Preliminary Prospectusespreliminary prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c8.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) 8.1 and the registration of the Shares Registrable Securities pursuant to the Registration StatementStatement except with respect to any legal or attorney fees incurred by any of the Investors in connection with the Registration Statement and any amendments thereto; and
(g) advise the InvestorInvestor (which advisement may occur electronically), 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 best 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review may include on the Registration Statement; shares of Common Stock of the Registration Statement Company for resale by certain other stockholders of the SEC staffCompany, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided and that following receipt of notice of such review, the Company shall have used its best efforts to cause may file a subsequent registration statement for the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter resale of shares of Common Stock by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing certain other stockholder of the Registration Statement with the SECCompany.
Appears in 1 contract
Registration Procedures and Other Matters. The Company shall:
(ai) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 days after no later than December 12, 2005 (the Closing Date (or, if earlier of the date such tenth day registration statement is a Saturday, Sunday actually filed or holiday, then by is required to be filed is the next succeeding business day“Filing Date”), a registration statement on Form S-3 X-0, Xxxx X-0, or Form S-1 (the “Registration Statement”) to enable the resale of the Shares by the Investors from time to time through the automated any quotation system of on which the Nasdaq National Market Common Stock is quoted or listed, if applicable, or in privately-negotiated transactions;
(bii) use its best efforts, subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, information (provided that failure on the part of one Investor shall not relieve the Company from its obligation to use its best efforts with respect to complying Investors), to cause the Registration Statement to become effective on or before the date that is the earliest of (1) in the event of no review by the staff of the SEC (the “Staff”), within 45 5 days of being informed by the Staff that the Staff has decided not to review the Registration Statement, but in no event later than 30 days after the Filing Date, (2) in the event of a review by the Staff, within 5 days of being informed by the Staff that the Staff have no further comments on such Registration Statement, but in no event later than 90 days after the Filing Date (the earliest of (1) and (2) thereof, the “Required Effective Date” and the date the Registration Statement is filed initially declared effective by the CompanySEC, the “Effective Date”), such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c; and, in the event that the filing referred to in Section 3.10(a)(i) above is on a form other than Form S-3, the Company shall use its best efforts, subject to receipt of necessary information from the Investors after prompt request from the Company to the Investors to provide such information (provided that failure on the part of one Investor shall not relieve the Company from its obligation to use best efforts with respect to complying Investors), to prepare and file with the SEC such amendments and supplements SEC, within 10 days after the Company first becomes eligible to the Registration Statement and the prospectus used in connection therewith file a registration statement on Form S-3, a registration statement on Form S-3 (the “ProspectusS-3 Registration Statement”) as may be necessary to keep enable the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period 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 without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writing, in order to facilitate the public sale or other disposition of all or any resale of the Shares by the Investor; provided, however, that Investors from time to time through any quotation system on which the obligation of the Company to deliver copies of Prospectuses Common Stock is quoted 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 listed 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 and use its best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the 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 purposeprivately-negotiated transactions; and it will promptly to use its 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the S-3 Registration Statement to become effective at as soon as practicable thereafter, such efforts to include, without limiting the earliest generality of the foregoing, preparing and filing with the SEC as promptly as practicable date. The Company understands any financial statements that are required to be filed prior to the Investor disclaims being an underwriter, but effectiveness of such S-3 Registration Statement (the Investor being deemed an underwriter term “Registration Statement” shall mean the S-1 or S-2 Registration Statement until the S-3 Registration Statement is declared effective by the SEC SEC, after which time it shall not relieve mean 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 S-3 Registration Statement with the SECStatement).
Appears in 1 contract
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 days after the first business day following the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)Date, a registration statement on Form S-3 (the “"Registration Statement”") to enable the resale of the Shares and the Warrant Shares by the Investors from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions;
(b) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 60 days after the Registration Statement is filed by the Company, Company such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 4560-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c) use its best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “"Prospectus”") as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s 's Shares purchased hereunderhereunder and Warrant Shares purchased under the Warrant, the earlier of (i) the second anniversary of two years after 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 the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering and Warrant Shares issuable pursuant to the Warrant have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares and Warrant Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, 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 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 and use its best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ ' fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ ' fees) and the registration of the Shares and Warrant Shares pursuant to the Registration Statement; and
(g) advise the 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 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares and the Warrant Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares and the Warrant Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities ActS-8, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “"best efforts” " obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 60 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but if the SEC deems the Investor being deemed to be an underwriter by underwriter, the SEC Company shall not relieve the Company be relieved of any obligations it has hereunder; provided, however, however that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 15 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)Date, a registration statement on Form S-3 (the “"Registration Statement”") to enable the resale of the Shares by the Investors from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions;
(b) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use its best reasonable commercial efforts to cause the Registration Statement to become effective within 45 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed on or prior to the effectiveness of such Registration StatementFebruary 14, 2004;
(c) use its best reasonable commercial efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus Prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s 's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, 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 and use its best reasonable commercial efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ ' fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ feesattorney fees of the Investor) and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the 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 best reasonable commercial 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities ActS-8, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but if the SEC deems the Investor being deemed to be an underwriter by the SEC Company shall not relieve the Company be relieved of any obligations it has hereunder; providedPROVIDED, however, HOWEVER that if the Company receives notification from the SEC that the 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 Other Matters. The Company shall:
(a) Subject to receipt by the Company of a completed Investor Questionnaire from the Investor as of the Closing Date, as soon as reasonably practicable, but in no event later than the earlier (the “Filing Date”) of (i) thirty (30) calendar days following the Closing Date and (ii) one hundred and twenty (120) calendar days following the First Closing, prepare and file with the SEC a Registration Statement on Form S-3 relating to the sale of the Shares, the Warrant Shares and any other shares of capital stock or other equity interests issued or issuable with respect to the foregoing by way of stock dividends, stock split or distribution or in connection with any combination of shares, merger, recapitalization, reorganization or similar event (collectively, “Registrable Securities”) by the Investor and the Other Investors from time to time on the Nasdaq or the facilities of any national securities exchange on which the Common Stock is then traded or in privately negotiated transactions (the “Registration Statement”). If Form S-3 is not available at that time, the Company will file a registration statement or such form as is then available to effect a registration of the Registrable Securities, subject to the consent of the holders of a majority of the Registrable Securities, which consent shall not be unreasonably withheld;
(b) use its commercially reasonable efforts, subject to receipt of necessary information from the Investor after prompt request from Investors, to cause the Company SEC to declare the Investors to provide such information, prepare Registration Statement effective within one hundred and file with the SEC, within 10 twenty (120) calendar days after the Closing Date Date, or if no Second Closing has occurred within one hundred and twenty (or120) days of the date hereof, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day), a registration statement on Form S-3 later (the “Registration StatementRequired Effective Date”) of (i) one hundred and eighty (180) days after the First Closing or (ii) ninety (90) days after the Company has received completed Investor Questionnaires from any Investor participating in the First Closing. The Company’s reasonable commercial efforts will include, but not be limited to, promptly responding to enable all comments received from the resale staff of the Shares by SEC. If the Investors Company receives notification from time to time through the automated quotation system of SEC that the Nasdaq National Market Registration Statement will receive no action or in privately-negotiated transactions;
(b) review from the SEC, then the Company will, subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such informationits rights under this Agreement, use its best commercially reasonable efforts to cause the Registration Statement to become effective within 45 five (5) business days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statementnotification;
(c) use its reasonable best efforts to promptly prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares purchased hereunder, until the earlier earliest of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor Investors and any other holder of Registrable Securities to whom the registration rights conferred by this Agreement have been transferred in compliance with Section 7.2 (each, a “Holder”), may sell all Shares then Registrable Securities held by thereby without registration, pursuant to Rule 144 of the Investor Securities Act and can be sold in one transaction without restriction by limitation in accordance with the volume limitations of contained in Rule 144(e144(e)(1)(i) of under the Securities Act, if applicable, or (iiiii) such time as all Shares and Warrant Shares purchased by such Investor all Investors in this the Offering have been sold pursuant to a registration statementRegistration Statement. Thereafter, the Company shall be entitled to withdraw the Registration Statement and the Holders shall have no further right to offer or sell any of the Shares and Warrant Shares pursuant to the Registration Statement;
(d) furnish to each Holder and the Investor with respect to the Shares registered under the Registration Statement underwriters, such number of copies of the Registration StatementStatement and each amendment and supplement thereto (including in each case all exhibits) and of prospectuses or preliminary prospectuses, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act Act, and such other documents as the Investor Holder or underwriter may reasonably request in writingrequest, in order to facilitate the public sale or other disposition or distribution of all or any of the Shares Registrable Securities by the InvestorHolders; provided, however, that the obligation of the Company to deliver copies of Prospectuses prospectuses or Preliminary Prospectuses preliminary prospectuses to the Investor Holders shall be subject to the receipt by the Company of reasonable assurances from the Investor Holder that the Investor Holder will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses prospectuses or Preliminary Prospectusespreliminary prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor and use its reasonable best efforts to maintain register and qualify the securities covered by such blue sky qualifications during registration statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably requested by the period Holders or any managing underwriter(s), to keep such registration or qualification in effect for so long as such registration statement remains in effect, and to take any other action which may be reasonably necessary to enable such seller to consummate the Company is required to maintain the effectiveness disposition in such jurisdictions of the Registration Statement pursuant to Section 7.1(c)securities owned by such Holder; provided, however, that the Company shall not be required to (i) qualify to do business or in any jurisdiction where it would not otherwise be required to qualify but for this Section 7.1; (ii) file a general consent to service of process in any jurisdiction such jurisdiction; (iii) subject itself to taxation in any such jurisdiction; (iv) provide any undertakings that cause material expense or burden to the Company; or (v) make any change to its organizational documents, which it is not now so qualified or has not so consentedin each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders;
(f) notify each Holder of Registrable Securities at any time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the applicable prospectus, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;
(g) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares Registrable Securities pursuant to the Registration Statement; and, including reasonable fees and expenses, if any, of one counsel representing the Investors, if any;
(gh) advise give prompt written notice to each Holder:
(i) when the Investor, promptly after it shall receive notice Registration Statement is filed or obtain knowledge of the issuance of any stop order by amendment thereto has been filed with the SEC delaying or suspending and upon the effectiveness of the Registration Statement, and any post-effective amendments thereto;
(ii) of any request by the SEC for amendments or supplements to the Registration Statement or the prospectus included therein or for additional information;
(iii) of the receipt by the Company of any stop orders of the SEC with respect to the Registration Statement or the initiation of any proceedings for that purpose, and of the lifting of any such order;
(iv) of the receipt by the Company or its legal counsel of any notification with respect to the suspension of the qualification of the Common Stock for sale in any jurisdiction or the initiation or threat threatening of any proceeding for such purpose;
(v) of the happening of any event that purposerequires the Company to make changes in any effective registration statement or the prospectus related to the Registration Statement in order to make the statements therein not misleading (which notice shall be accompanied by an instruction to suspend the use of the prospectus until the requisite changes have been made); and
(vi) if at any time the representations and it will promptly warranties of the Company contained in any underwriting agreement contemplated by Section 7.1(l) cease to be true and correct.
(i) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any stop order or suspending the effectiveness of any registration statement referred to obtain its withdrawal in Section 7.1(h)(iii) at the earliest possible moment if practicable time;
(j) upon the occurrence of any event contemplated by Section 7.1(f) or 7.1(h)(vi), promptly prepare a post-effective amendment to such stop order should be issued. Notwithstanding anything registration statement or a supplement to the contrary hereinrelated prospectus or file any other required document so that, as thereafter delivered to the Holders and any underwriters, the Registration Statement prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with Section 7.1(h)(v) to suspend the use of the prospectus until the requisite changes to the prospectus have been made, then the Holders and any underwriters shall cover only suspend use of such prospectus and use their reasonable best efforts to return to the Company all copies of such prospectus (at the Company’s expense) other than permanent file copies then in such Holder’s or underwriter’s possession. The total number of days that any such suspension (each, a “Suspension”) may be in effect in any 365 day period shall not exceed 30 days. The Company acknowledges and agrees that nothing contained in this Agreement (including any Suspension of the prospectus as contemplated herein) shall limit in any way the Investor's trading activity with respect to securities of the Company other than Shares and Warrant Shares. In no event at ;
(k) use reasonable best efforts to procure the cooperation of the Company’s transfer agent in settling any time before the Registration Statement becomes effective offering or sale of Registrable Securities, including with respect to the Shares shall transfer of physical stock certificates into book entry form in accordance with any procedures reasonably requested by Holder or any managing underwriter(s);
(l) if selling Registrable Securities in a public offering for which the Company publicly announce or file any reasonably anticipated aggregate price to the public, net of expenses, would exceed U.S. $20,000,000, enter into an underwriting agreement in customary form, scope and substance and take all such other registration statement, other than registrations on Form S-8 or for transactions covered actions reasonably requested by Rule 145 of the Securities Act, without the prior written consent Holders of a majority in interest of the InvestorsRegistrable Securities being sold in connection therewith or by the managing underwriter(s), if any, to expedite or facilitate the underwritten disposition of such Registrable Securities, and in connection therewith in any underwritten offering (including making members of management and executives of the Company available to participate in “road shows”, similar sales events and other marketing activities), (i) make such representations and warranties to the Holders that are selling stockholders and the managing underwriter(s), if any, with respect to the business of the Company, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in customary form, substance and scope, and, if true, confirm the same if and when requested, (ii) use its reasonable best efforts to furnish underwriters opinions of counsel to the Company, addressed to the managing underwriter(s), if any, covering the matters customarily covered in such opinions requested in underwritten offerings, (iii) use its reasonable best efforts to obtain “cold comfort” letters from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any business acquired by the Company for which financial statements and financial data are included in the Registration Statement) who have certified the financial statements included in such Registration Statement, addressed to each of the managing underwriter(s), if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures customary in underwritten offerings, and (v) deliver such documents and certificates as may be reasonably requested by the Holders of a majority of the Registrable Securities being sold in connection therewith, their counsel and the managing underwriter(s), if any, to evidence the continued validity of the representations and warranties made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The Investor acknowledges and agrees that Notwithstanding anything contained herein to the contrary, the Company shall not be regarded required to have breached its “best efforts” obligation under Section 7.1(b(i) ifenter into any underwriting agreement or permit any underwritten offering absent an agreement by the applicable underwriter(s) to indemnify the Company in form, owing to a review scope and substance as is customary in underwritten offerings by the Company in which an affiliate of the Registration Statement Company acts as an underwriter; (ii) enter more than one underwriting agreement or permit more than one underwritten offering pursuant to this Agreement; or (iii) extend any underwritten offering beyond the period recommended by the SEC staffunderwriters; Notwithstanding the foregoing, it shall be a condition precedent to the obligations of the Company to take any action pursuant to paragraphs (a) through (f) of this Section 7.1, that the Investor shall furnish to the Company a completed Investor Questionnaire, a form of which is attached hereto as Exhibit B, providing such information regarding itself, the Registration Statement does not become effective within 45 days after Registrable Securities to be sold by the Investor, and the intended method of disposition of such Registrable Securities as shall be required to effect the registration of such Registrable Securities, all of which information shall be furnished to the Company in writing specifically for use in the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable dateStatement. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; , provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by in which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day one hundred twenty (120) days after such SEC notification, or (ii) 120 one hundred fifty (150) days after the initial filing of the Registration Statement with the SEC. Notwithstanding the foregoing, the parties understand and agree that the Company shall not be obligated to retain an underwriter with respect to the offer and sale of Shares pursuant to the Registration Statement except as set forth in Section 7.7 herein.
Appears in 1 contract
Samples: Securities Purchase Agreement (NxStage Medical, Inc.)
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use its best efforts to prepare and file with the SEC, within 10 days after 7 the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)Date, a registration statement on Form S-3 (the “"Registration Statement”") to enable the resale of the Shares by the Investors from time to time 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 Investor Investors after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 30 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC on or prior to the filing of the Registration Statement, but in such 45-day period any case, within ten (10) days of the Closing Date any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c) use its best reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus Prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, current and effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s 's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;.
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, 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 and use its best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c)Investor; provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (ef) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the 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 best 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, 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 (Axys Pharmecueticals Inc)
Registration Procedures and Other Matters. The Company shall:
(ai) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 45 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)Date, a registration statement on Form S-3 X-0, Xxxx X-0, or Form S-1 (the “Registration Statement”) to enable the resale of the Shares by the Investors from time to time through the automated any quotation system of on which the Nasdaq National Market Common Stock is quoted or listed, if applicable, or in privately-negotiated transactions;
(bii) use its best efforts, subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, information (provided that failure on the part of one Investor shall not relieve the Company from its obligation to use its best efforts with respect to complying Investors), to cause the Registration Statement to become effective within 45 days after on or before December 31, 2004 (the date the Registration Statement is filed initially declared effective by the CompanySEC, the “Effective Date”), such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c; and, in the event that the filing referred to in Section 3.10(a)(i) above is on a form other than Form S-3, the Company shall use its best efforts, subject to receipt of necessary information from the Investors after prompt request from the Company to the Investors to provide such information (provided that failure on the part of one Investor shall not relieve the Company from its obligation to use best efforts with respect to complying Investors), to prepare and file with the SEC such amendments and supplements SEC, within 10 days after the Company first becomes eligible to the Registration Statement and the prospectus used in connection therewith file a registration statement on Form S-3, a registration statement on Form S-3 (the “ProspectusS-3 Registration Statement”) as may be necessary to keep enable the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period 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 without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writing, in order to facilitate the public sale or other disposition of all or any resale of the Shares by the Investor; provided, however, that Investors from time to time through any quotation system on which the obligation of the Company to deliver copies of Prospectuses Common Stock is quoted 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 listed 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 and use its best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the 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 purposeprivately-negotiated transactions; and it will promptly to use its 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the S-3 Registration Statement to become effective at as soon as practicable thereafter, such efforts to include, without limiting the earliest generality of the foregoing, preparing and filing with the SEC as promptly as practicable date. The Company understands any financial statements that are required to be filed prior to the Investor disclaims being an underwriter, but effectiveness of such S-3 Registration Statement (the Investor being deemed an underwriter term “Registration Statement” shall mean the S-1 or S-2 Registration Statement until the S-3 Registration Statement is declared effective by the SEC SEC, after which time it shall not relieve mean 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 S-3 Registration Statement with the SECStatement).
Appears in 1 contract
Registration Procedures and Other Matters. The Company SatCon shall:
(a) subject to receipt of necessary information from the Investor C&M after prompt request from the Company SatCon to the Investors C&M to provide such information, prepare and file with the SEC, within 10 30 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)Issuance Date, a “shelf” registration statement covering the resale of all Shares for an offering to be made on Form S-3 a continuous basis pursuant to Rule 415 (the “Registration Statement”) to enable ). The Registration Statement shall be on Form S-3. In the event the Form S-3 is not available for the registration of the resale of Shares hereunder, SatCon shall register the resale of the Shares by the Investors from time to time through the automated quotation system of the Nasdaq National Market or on another appropriate form in privately-negotiated transactionsaccordance herewith;
(b) subject to receipt of necessary information from the Investor C&M after prompt request from the Company SatCon to the Investors C&M to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 90 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;Issuance Date.
(c) use its 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 (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares purchased hereunderthe Shares, the earlier of (i) the second first anniversary of the Closing Issuance Date, (ii) the date on which the Investor C&M may sell all Shares then held by the Investor C&M without restriction by the volume limitations of Rule 144(e) of the Securities ActAct and the rules and regulations promulgated thereunder, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statementthe Registration Statement;
(d) comply with any prospectus publication requirement then applicable to it and furnish to the Investor C&M with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor C&M may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Shares by the InvestorC&M; provided, however, that the obligation of the Company SatCon to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor C&M shall be subject to the receipt by the Company SatCon of reasonable assurances from the Investor C&M that the Investor C&M 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 SatCon for normal blue sky clearance in states specified in writing by the Investor C&M and use its best efforts to maintain such blue sky qualifications during the period the Company SatCon is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c4.1(c); provided, however, that the Company SatCon shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 4.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the InvestorC&M, including attorneys’ feesfees of C&M) and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the InvestorC&M, 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 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Samples: Modification, Termination and Release of Lease (Satcon Technology Corp)
Registration Procedures and Other Matters. (a) The Company shall:
(ai) subject to receipt of necessary information from as soon as possible but in any event not later than the Investor after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 days 120th day after the Closing Date of this Agreement (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day), file a registration statement on Form S-3 S-1 (or, if Form S-1 is not then available, on such form of registration statement as is then available to effect a registration of the “Registration Statement”Shares) to enable the resale of the Shares by the Investors Subscribers from time to time through (the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions"Registration Statement");
(bii) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, use its best commercially reasonable efforts to cause a Registration Statement to be declared effective by the SEC as soon as possible, but in any event not later than the earlier of (a) the 180th day following the Closing Date, and (b) the fifth trading day following the date on which the Company is notified by the SEC that the Registration Statement will not be reviewed or is no longer subject to become effective within 45 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing further review and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statementcomments;
(ciii) use its best commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “"Prospectus”") as may be necessary to keep the Registration Statement continuously current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investorthe Subscriber’s Shares purchased hereunder, hereunder from the earlier of (i) the second anniversary of the Closing Date, (ii) date it is first declared effective until the date on which the Investor Subscriber may sell all Shares then held by the Investor Subscriber pursuant to Rule 144 without any restriction as to the number of securities as of a particular date that can then be immediately sold.(such period, the "Effectiveness Period");
(iv) if (A) the Registration Statement is not filed on or prior to the date of filing required pursuant to Section 1, (B) the Registration Statement is not declared effective on or prior to the date required by the volume limitations of Rule 144(e) of the Securities ActSection 2, or (iiiC) notwithstanding Section b), after the date first declared effective by the SEC and prior to the expiration of the Effectiveness Period, the Registration Statement ceases to be effective and available to each Subscriber as to its Shares (whether pursuant to Section 5), or otherwise) without being succeeded within 20 trading days by an effective amendment thereto or by a subsequent registration statement filed with and declared effective by the SEC, (any such time failure being referred to as all Shares purchased an "Event" and the date of such failure being the "Event Date"), then, in addition to any other rights available to the Subscriber under this Agreement or applicable law: (w) on the failure by the Company to comply with the Event required pursuant to Section 1 the Company shall issue additional shares of its common stock (valued at $0.02 per share) to the Subscriber as liquidated damages and not as a penalty, equal to five percent of the Subscription Price paid by the Subscriber and on each monthly anniversary of such Event Date (if the Event has not been cured by such Investor date) until the applicable Event is cured, the Company shall pay to the Subscriber a further amount in this Offering have been sold common stock valued at $0.02 per shares, as liquidated damages and not as a penalty, equal to one percent of the Subscription Price paid by the Subscriber; (x) on the failure by the Company to comply with the Event required pursuant to Section 2 or the occurrence of the Event set forth in Section 4(C) and on each monthly anniversary of such Event Dates (if the Event has not been cured by such date) until the applicable Event is cured, an amount shall accrue and be payable by the Company to the Subscriber, as liquidated damages and not as a registration statementpenalty, equal to one percent of the Subscription Price paid by the Subscriber; and if an Event is not cured within 90 days of the applicable Event Date, all liquidated damages that have accrued and are owed and continue to accrue to the Subscriber shall be paid in common stock, and any liquidated damages shall not exceed twenty five percent of the Subscription Price paid by the Subscriber. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event;
(dv) furnish to the Investor Subscriber with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities 1933 Act and such other documents as the Investor Subscriber may reasonably request in writing, in order to facilitate the public sale or other disposition of all or any of the Shares by the InvestorSubscriber; provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor Subscriber shall be subject to the receipt by the Company of reasonable assurances from the Investor Subscriber that the Investor Subscriber will comply with the applicable provisions of the Securities 1933 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;
(evi) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor Subscriber and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c)Xxxxxxx x)0)0; 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;
(fvii) bear all expenses in connection with the procedures in paragraph (a) 1 through (e) 6 of this Section 7.1 a) (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the InvestorSubscriber, including attorneys’ fees) and the registration of the Shares pursuant to the Registration Statement); and
(gviii) advise the Investor, Subscriber 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 or threat of any proceeding for that purpose; and it will promptly use its best 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. .
(b) Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the SharesShares and such other securities issued by the Company subject to registration rights. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or registrations for transactions covered other securities issued by Rule 145 of the Securities ActCompany subject to registration rights, without the prior written consent of a majority 66-2/3% in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SECSubscribers.
Appears in 1 contract
Registration Procedures and Other Matters. (a) The Company shall:
(ai) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, prepare and file simultaneous with the SEC, within 10 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day), filing of a registration statement on Form S-3 S-4 in connection with the proposed merger with Thorium Power, Inc., or within fifteen (15) days thereafter, file a registration statement on Form SB-2 (or, if Form S-B2 is not then available, on such form of registration statement as is then available to effect a registration of the “Registration Statement”Shares and Warrant Shares) to enable the resale of the Shares and the Warrant Shares by the Investors Subscribers from time to time through (the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions;“Registration Statement”):
(bii) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, use its reasonable best efforts to cause the Registration Statement to become be declared effective within 45 days after by the SEC as soon as possible, but in any event not later than the earlier of (a) the 120th day following the Closing Date, and (b) the fifth trading day following the date on which the Company is notified by the SEC that the Registration Statement will not be reviewed or is filed by the Company, such efforts no longer subject to include, without limiting the generality of the foregoing, preparing further review and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statementcomments;
(ciii) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement continuously current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investorthe Subscriber’s Shares and Warrant Shares purchased hereunderhereunder from the date it is first declared effective until, the earlier of (iA) two years from the second anniversary date of the Closing Datefinal exercise of all of the Warrants, (iiB) the date on which the Investor Subscriber may sell all Shares and Warrant Shares then held by the Investor Subscriber pursuant to Rule 144 without any restriction by as to the volume limitations number of Rule 144(e) securities as of the Securities Acta particular date that can then be immediately sold, or (iiiC) the public sale of all of the Shares and the Warrant Shares (such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statementperiod, the “Effectiveness Period”);
(div) if (A) the Registration Statement is not filed on or prior to the date of filing required pursuant to Section 1(a)(i), (B) the Registration Statement is not declared effective on or prior to the date required by Section 1(a)(ii), or (C) notwithstanding Section 2, after the date first declared effective by the SEC and prior to the expiration of the Effectiveness Period, the Registration Statement ceases to be effective and available to each subscriber as to its Shares and Warrant Shares (whether pursuant to Section 2(c), or otherwise) without being succeeded within 20 trading days by an effective amendment thereto or by a subsequent registration statement filed with and declared effective by the SEC (any such failure being referred to as an “Event” and the date of such failure being the “Event Date”), then, in addition to any other rights available to the Subscriber under the Subscription Agreement or applicable law: (x) on the failure by the Company to comply with the Event required pursuant to Section 1(a)(i) the Company shall issue to the Subscriber cash or additional Units, at the sole option of the Subscriber, as liquidated damages and not as a penalty, equal to 2% of the number of Units for which the Subscriber subscribed on each monthly anniversary of such Event Date (if the Event has not been cured by such date); (y) on the failure by the Company to comply with the Event required pursuant to Section 1(a)(ii) or the occurrence of the Event set forth in Section 1 (a)(iv)(C) and on each monthly anniversary of such Event Dates (if the Event has not been cured by such date) until the applicable Event is cured, the Company shall issue to the Subscriber cash or additional Units, at the sole option of the Subscriber, as liquidated damages and not as a penalty, equal to 2% of the number of Units for which the Subscriber subscribed on each monthly anniversary of such Event Date (if the Event has not been cured by such date); and (z) in the case of each of (x) and (y) above, in no event shall the aggregate amount of cash or number of Units issued as liquidated damages exceed 12% of the amount of cash paid or the number of Units paid for by the Subscriber. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event;
(v) furnish to the Investor Subscriber with respect to the Shares and the Warrant Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor Subscriber may reasonably request in writing, in order to facilitate the public sale or other disposition of all or any of the Shares or Warrant Shares by the InvestorSubscriber; provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor Subscriber shall be subject to the receipt by the Company of reasonable assurances from the Investor Subscriber that the Investor Subscriber will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(evi) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor Subscriber and use its reasonable best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c1(a)(iii); 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;
(fvii) bear all expenses in connection with the procedures in paragraph (ai) through (evi) of this Section 7.1 1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the InvestorSubscriber, including attorneys’ fees) and the registration of the Shares pursuant to the Registration Statement); and
(gviii) advise the Investor, Subscriber 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 or threat of any proceeding for that purpose; and it will promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Samples: Confidential Private Placement Subscription Agreement (Novastar Resources Ltd.)
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 30 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day“Filing Date”), a registration statement on Form S-3 S-1 (the “Registration Statement”) to enable the resale of the Shares and the Warrant Shares by the Investors from time to time through in compliance with the automated quotation system of the Nasdaq National Market or in privately-negotiated transactionsSecurities Act;
(b) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 days on or prior to the sixtieth (60th) day after the Closing Date (the “Required Effective Date”). However, so long as the Company filed the Registration Statement is filed by the CompanyFiling Date, such efforts to includeif the Registration Statement receives SEC review, without limiting then the generality of Required Effective Date will be the foregoing, preparing and filing with one hundred twentieth (120th) calendar day after the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration StatementClosing Date;
(c) use its best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement in compliance with applicable laws, and the prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s the Shares purchased hereunderby the Investor and the Warrant Shares issued pursuant to the Warrants, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all of the Shares and the Warrant Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all of the Shares purchased by such the Investor in this Offering the transaction contemplated by the Agreement and the Warrant Shares issued to the Investor pursuant to the Warrants have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares and the Warrant Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Shares and the Warrant 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 Investors and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e), (h) and the last paragraph of this Section 7.1 and the registration of the Shares and the Warrant Shares pursuant to the Registration Statement (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, expenses and any other fees or expenses incurred by the InvestorInvestors, including attorneys’ fees) and the registration of the Shares pursuant to the Registration Statement; and);
(g) advise the 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 best commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest as promptly as possible moment if such stop order should be issued;
(h) include in the Registration Statement a “Plan of Distribution” section substantially in the form attached hereto as Exhibit A; and
(i) upon becoming eligible to use Form S-3, convert the Registration Statement from a Form S-1 to a Form S-3 as promptly as practicable. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares and the Warrant Shares, but the parties acknowledge that the Company may choose to include, at its option and solely for its convenience, the Shares and the Warrant Shares on a registration statement with other similar securities, but only if to do so would not adversely affect the Investor. In no event at any time before the Registration Statement becomes effective with respect to the Shares and the Warrant Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities ActS-8, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of third-party purchasers in the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable dateContemporaneous Offering. The Company understands that the Investor disclaims being an underwriter, but the any Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, however that if the Company receives notification from the SEC that the an 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, notification or (ii) 120 150 days after the initial filing of the Registration Statement with the SEC. Within three business days of the effectiveness date of the Registration Statement, the Company shall give notice to the Investor of such effectiveness and use its commercially reasonable efforts to cause its counsel to issue an appropriate opinion or opinions to the transfer agent substantially to the effect that the shares are subject to an effective registration statement and can be reissued free of restrictive legend in accordance with provisions of Section 7.6.
Appears in 1 contract
Samples: Securities Purchase Agreement (Advanced Life Sciences Holdings, Inc.)
Registration Procedures and Other Matters. (a) The Company shall:
(ai) subject to receipt of necessary information from as soon as possible but in any event not later than the Investor after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 days 60th day after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day), file a registration statement on Form S-3 (or, if Form S-3 is not then available, on such form of registration statement as is then available to effect a registration of the “Registration Statement”Shares and Warrant Shares) to enable the resale of the Shares and the Warrant Shares by the Investors Subscribers from time to time through (the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions"Registration Statement");
(bii) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, use its best commercially reasonable efforts to cause a Registration Statement to be declared effective by the SEC as soon as possible, but in any event not later than the earlier of (a) the 120th day following the Closing Date, and (b) the fifth trading day following the date on which the Company is notified by the SEC that the Registration Statement will not be reviewed or is no longer subject to become effective within 45 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing further review and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statementcomments;
(ciii) use its best commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “"Prospectus”") as may be necessary to keep the Registration Statement continuously current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s the Subscriber's Shares and Warrant Shares purchased hereunderhereunder from the date it is first declared effective until, the earlier of (iA) two years from the second anniversary date of the Closing Datefinal exercise of all of the Warrants, (iiB) the date on which the Investor Subscriber may sell all Shares and Warrant Shares then held by the Investor Subscriber pursuant to Rule 144 without any restriction by as to the volume limitations number of Rule 144(e) securities as of the Securities Acta particular date that can then be immediately sold, or (iiiC) the public sale of all of the Shares and the Warrant Shares (such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statementperiod, the "Effectiveness Period");
(div) if (A) the Registration Statement is not filed on or prior to the date of filing required pursuant to Section 9.1(a)(i), (B) the Registration Statement is not declared effective on or prior to the date required by Section 9.1(a)(ii), or (C) notwithstanding Section 9.2, after the date first declared effective by the SEC and prior to the expiration of the Effectiveness Period, the Registration Statement ceases to be effective and available to each Subscriber as to its Shares and Warrant Shares (whether pursuant to Section 9.2(c), or otherwise) without being succeeded within 20 trading days by an effective amendment thereto or by a subsequent registration statement filed with and declared effective by the SEC, (any such failure being referred to as an "Event" and the date of such failure being the "Event Date"), then, in addition to any other rights available to the Subscriber under this Agreement or applicable law: (w) on the failure by the Company to comply with the Event required pursuant to Section 9.1(a)(i) the Company shall pay to the Subscriber an amount in cash, as liquidated damages and not as a penalty, equal to one percent of the Subscription Price paid by the Subscriber and on each monthly anniversary of such Event Date (if the Event has not been cured by such date) until the applicable Event is cured, the Company shall pay to the Subscriber a further amount in cash, as liquidated damages and not as a penalty, equal to one percent of the Subscription Price paid by the Subscriber; (x) on the failure by the Company to comply with the Event required pursuant to Section 9.1(a)(ii) or the occurrence of the Event set forth in Section 9.1(a)(iv)(C) and on each monthly anniversary of such Event Dates (if the Event has not been cured by such date) until the applicable Event is cured, an amount shall accrue and be payable by the Company to the Subscriber, as liquidated damages and not as a penalty, equal to one percent of the Subscription Price paid by the Subscriber; (y) provided however that if the foregoing Events set forth in (x) is cured by the Company within 90 days of the applicable Event Date, all liquidated damages that have accrued and are due and owing by the Company to the Subscriber shall be payable in Units (to be registered in accordance with the terms of this Agreement), as liquidated damages and not as a penalty; and (z) if an Event is not cured within 90 days of the applicable Event Date, all liquidated damages that have accrued and are owed and continue to accrue to the Subscriber shall be paid in cash, and any liquidated damages that accrue after one year from the Closing Date shall not exceed six percent of the Subscription Price paid by the Subscriber. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event;
(v) furnish to the Investor Subscriber with respect to the Shares and the Warrant Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities 1933 Act and such other documents as the Investor Subscriber may reasonably request in writing, in order to facilitate the public sale or other disposition of all or any of the Shares or Warrant Shares by the InvestorSubscriber; provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor Subscriber shall be subject to the receipt by the Company of reasonable assurances from the Investor Subscriber that the Investor Subscriber will comply with the applicable provisions of the Securities 1933 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;
(evi) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor Subscriber and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c9.1(c); 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;
(fvii) bear all expenses in connection with the procedures in paragraph (ai) through (evi) of this Section 7.1 9.1 (other than any underwriting discounts or commissions, brokers’ ' fees and similar selling expenses, and any other fees or expenses incurred by the InvestorSubscriber, including attorneys’ ' fees) and the registration of the Shares pursuant to the Registration Statement); and
(gviii) advise the Investor, Subscriber 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 or threat of any proceeding for that purpose; and it will promptly use its best 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. .
(b) Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the SharesShares and the Warrant Shares and such other securities issued by the Company subject to registration rights. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or registrations for transactions covered other securities issued by Rule 145 of the Securities ActCompany subject to registration rights, without the prior written consent of a majority 66-2/3% in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SECSubscribers.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Heartland Oil & Gas Corp)
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 60 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day)Date, a registration statement on Form S-3 (the “"Registration Statement”") to enable the resale of (i) the Common Shares, (ii) the Warrant Shares issued or issuable upon exercise of the Warrants, and (iii) any shares of capital stock issued or issuable with respect to the Common Shares, the Warrant Shares or the Warrants as a result of any stock split, stock dividend, recapitalization, exchange or similar event or otherwise, without regard to any limitations on exercise of the Warrants (collectively, the "Registrable Securities") by the Investors from time to time through the automated quotation system of the Nasdaq National Principal Market or in privately-negotiated transactionstransactions pursuant to Rule 415 of the Securities Act;
(b) use its commercially reasonable efforts, subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 60 days after the Registration Statement is filed by the CompanyCompany (unless the Registration Statement is reviewed by the SEC), such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 4560-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c) use its best commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus Prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s Shares purchased hereunder, exceeding the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares Registrable Securities then held by the Investor without restriction by the volume limitations of pursuant to Rule 144(e144(k) of promulgated under the Securities Act, or (iii) such time as all Shares Registrable Securities purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares Registrable Securities registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, 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 and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares Registrable Securities pursuant to the Registration Statement; and
(g) advise the 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 best 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the SharesRegistrable Securities. In no event at any time before the Registration Statement becomes effective with respect to the Shares Registrable Securities shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities ActS-8, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Samples: Securities Purchase Agreement (Odyssey Marine Exploration Inc)
Registration Procedures and Other Matters. The Company Issuer shall:
(a) subject to receipt of necessary information from the Investor Purchasers after prompt request from the Company Issuer to the Investors Purchasers to provide such information, promptly following the Closing but no later than August 31, 2005 (the "Filing Date"), prepare and file with the Securities and Exchange Commission (the "SEC, within 10 days after the Closing Date (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day), ") a registration statement on Form S-3 or such other successor form (except that if the “Issuer is not then eligible to register for resale the Common Stock on Form S-3, in which case such registration shall be on Form S-1 or any successor form) (a "Registration Statement”") to enable the resale of the Shares Common Stock, by the Investors Purchasers or their transferees from time to time through over the automated quotation system of American Stock Exchange or any other national exchange on which the Nasdaq National Market Issuer's Common Stock is then traded, or in privately-negotiated transactions. No Purchaser may include any shares of Common Stock in the Registration Statement pursuant to this Agreement unless such Purchaser furnishes to the Issuer in writing within five business days after receipt of request therefor, such requested information;
(b) use its commercially reasonable efforts, subject to receipt of necessary information from the Investor Purchasers after prompt request from the Company Issuer to the Investors Purchasers to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statementas soon as practicable;
(c) use its best commercially reasonable efforts to cause such Registration Statement to remain continuously effective and prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “"Prospectus”") (and the applicable Exchange Act reports incorporated therein by reference, so filed on a timely basis) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceedingending on the date that is, with respect to each Investor’s Shares Purchaser's Common Stock purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor Purchaser may sell all Shares shares of Common Stock then held by the Investor Purchaser without restriction by the volume limitations of under Rule 144(e) of the Securities Act144(k), or (iiiii) such time as all Shares shares of Common Stock purchased by such Investor in Purchaser pursuant to this Offering Agreement have been sold or otherwise transferred pursuant to a registration statementstatement or otherwise;
(d) so long as a Purchaser holds shares of Common Stock purchased pursuant to this Agreement, provide copies to and permit single legal counsel designated by the Purchasers to review the Registration Statement and all amendments and supplements thereto, no fewer than three business days prior to their filing with the SEC, and not file any Registration Statement, amendment or supplement thereto to which a holder of the Common Stock reasonably objects in writing within such three business day period;
(e) furnish to the Investor Purchasers with respect to the Shares registered under shares of Common Stock included in the Registration Statement such number of copies of the Registration Statement, Prospectuses and preliminary Prospectuses ("Preliminary Prospectuses Prospectuses" and individually, "Preliminary Prospectus") in conformity with the requirements of the Securities Act and such other documents as the Investor Purchasers may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Shares shares of Common Stock by the InvestorPurchasers; provided, however, that the obligation of the Company Issuer to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor Purchasers shall be subject to the receipt by the Company Issuer of reasonable assurances from the Investor Purchasers that the Investor Purchasers will comply with the applicable provisions of prospectus delivery requirements under 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;
(ef) file documents required of the Company Issuer for normal customary blue sky clearance in states specified in writing by the Investor Purchasers and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company Issuer is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c8.1(b); provided, however, that the Company Issuer shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(fg) bear all expenses in connection promptly notify the Purchasers after it receives notice of the time when the Registration Statement has been declared effective by the SEC, or when a supplement or amendment to any Registration Statement has been filed with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares pursuant to the Registration StatementSEC; and
(gh) advise the InvestorPurchasers, promptly promptly: (i) after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation or threat of any proceeding for that purpose; and it will promptly use its best 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. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event ; and (ii) at any time before the Registration Statement becomes effective with respect when a Prospectus relating to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 shares of Common Stock is required to be delivered under the Securities Act, without upon discovery that, or upon the prior written consent happening of an event as a result of which, the Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a majority material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in interest light of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, circumstances then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SECexisting.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Abraxas Petroleum Corp)
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor after prompt request from the The Company shall (i) furnish to the Investors Purchaser, prior to provide such information, prepare and file the filing thereof with the SEC, within 10 days after the Closing Date (ora copy of each Registration Statement and each amendment thereto and each Prospectus and each supplement, if any, thereto, and shall use its commercially reasonable efforts to reflect in each such tenth day is a Saturdaydocument, Sunday or holidaywhen so filed with the SEC, then by such comments as the next succeeding business day), a registration statement on Form S-3 Purchaser reasonably may propose; and (ii) include in the “Registration Statement”) , at the time it is first declared effective, the name of each Holder, and all other required information with respect to enable such Holder, that provided written notice to the resale of Company that such Holder would participate in such registration; provided, that such Holder shall have provided the Shares by the Investors from time to time through the automated quotation system of the Nasdaq National Market or information described in privately-negotiated transactions;Section 8.4.
(b) subject to receipt of necessary information from the Investor after prompt request from the The Company to the Investors to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 days after the Registration Statement is filed by the Company, such efforts to includeshall furnish, without limiting the generality of the foregoingcharge, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c) use its best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period 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 without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor Holder with respect to the Shares Registrable Securities registered under the each Registration Statement such number of copies of the Registration Statement, Prospectuses Prospectus and Preliminary Prospectuses preliminary prospectus each prepared in conformity with the requirements of the Securities Act and such other documents as the Investor such Holder may reasonably request in writingrequest, in order to facilitate the public sale or other disposition of all or any of the Shares Registrable Securities by the Investorsuch Holder; provided, however, that the obligation of the Company to deliver copies of Prospectuses the Prospectus or Preliminary Prospectuses preliminary prospectus to the Investor such Holder shall be subject to the receipt by the Company of such reasonable assurances from such Holder as the Investor Company may reasonably request that the Investor such Holder will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses Prospectus or Preliminary Prospectuses;preliminary prospectus.
(ec) The Company shall file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor any Holder and use its best commercially reasonable efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement Statements pursuant to Section 7.1(c8.1(c); 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;.
(d) The Company shall cooperate with the Holders of Registrable Securities to facilitate the timely preparation and delivery of certificates, if any, representing the Registrable Securities to be sold pursuant to the Registration Statements free of any restrictive legends and in such denominations and registered in such names as the Holders may reasonably request within a reasonable period of time prior to sale of the Registrable Securities pursuant to the Registration Statements.
(e) Subject to the provisions of the second sentence of this Section 8.2(e), in the event that the Purchaser selects underwriters for the offering as permitted by the first proviso clause in the first sentence of Section 8.1(e), (i) the Company shall include in the Registration Statements such information as the underwriters may reasonably request for marketing reasons, whether or not the information is required to be included, and, (ii) if requested by the underwriters selected by the Purchaser in order to facilitate the sale of the Registrable Securities, the Company shall, at the Purchaser’s expense, participate in reasonable road show and similar marketing arrangements and otherwise cooperate, in such manner as the Purchaser may reasonably request, with the Purchaser and the underwriters selected by it in the marketing of the offering. The provisions of the previous sentence shall not obligate the Company to include information in the Registration Statements or to make any other public disclosure of information other than information previously disclosed by the Company in filings made by it with the SEC under the Securities Act or the Exchange Act.
(f) bear all expenses At the request of the Purchaser, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the procedures in paragraph Registration Statements, (ai) through (e) an opinion, dated as of this Section 7.1 (other than any underwriting discounts or commissionssuch date, brokers’ fees and similar selling expensesfrom counsel representing the Company for purposes of the Registration Statements, and any other fees or expenses incurred by addressed to the Investor, including attorneys’ fees) underwriter and the registration Purchaser, in such form, scope and substance as is customarily given in an underwritten public offering, and (ii) a letter, dated as of such date, from the Shares pursuant Company’s independent certified public accountants, and addressed to the Registration Statement; andunderwriters and the Purchaser, in such form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering.
(g) advise The Company shall (i) make reasonably available for inspection by the Investor, promptly after it shall receive notice or obtain knowledge Holders and any underwriter that they may designate as permitted by the first proviso clause of the issuance first sentence of Section 8.1(e), and any stop order attorney, accountant or other agent retained by the SEC delaying Holders or suspending the effectiveness any such underwriter, all relevant financial and other records, pertinent corporate documents, and properties of the Registration Statement Company and (ii) cause the Company’s officers, directors, employees, and independent certified public accountants to supply all relevant information reasonably requested by the Holders or of the initiation any such underwriter, or threat of any proceeding for that purpose; and it will promptly use its best efforts to prevent the issuance of any stop order their respective attorneys, accountants or to obtain its withdrawal at the earliest possible moment if such stop order should be issued. Notwithstanding anything to the contrary hereinagents, in connection with the Registration Statement Statements, in each case, as shall cover only be reasonably necessary to enable such Persons to conduct a reasonable investigation within the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 meaning of Section 11 of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC no Person shall be extended to granted the earlier of rights set forth in clauses (i) the 90th day after such SEC notification, or and (ii) 120 days after the initial filing above unless and until such Person shall first have executed and delivered a confidentiality agreement in favor of the Registration Statement Company in customary form reasonably acceptable to the Company with respect to any information received by such Person from the SECCompany pursuant to the exercise of such rights.
(h) The Company shall use its commercially reasonable efforts to cause the Registrable Securities to be listed on the NNM.
(i) The Company shall use its commercially reasonable efforts, subject to the terms and conditions of this Agreement, to take all other steps necessary to effect and maintain the registration of the Registrable Securities.
Appears in 1 contract
Registration Procedures and Other Matters. The Company shall:
(a) subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, prepare and file with the SEC, within 10 days after the Closing Date Date, (or, if such the tenth day after the Closing Date is not a Saturday, Sunday or holidaybusiness day, then by the next succeeding first business day), day thereafter) a registration statement on Form S-3 (the “"S-3 Registration Statement”") to enable the resale of the Shares by the Investors from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions;
(b) use its best efforts, subject to receipt of necessary information from the Investor Investors after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the S-3 Registration Statement to become effective within 45 30 days after the S-3 Registration Statement is filed by the CompanyCompany (or, if the thirtieth day is not a business day, the first business day thereafter), such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 4530-day period any financial statements that are required to be filed prior to the effectiveness of such S-3 Registration Statement;
(c) use its best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to each Investor’s 's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses prospectuses and Preliminary Prospectuses preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request in writingrequest, 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 prospectuses or Preliminary Prospectuses 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 prospectuses or Preliminary Prospectusespreliminary prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor and use its best efforts to maintain such blue sky qualifications during the period the Company is required to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c7.1(d); provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) and the registration of the Shares pursuant to the Registration StatementStatement except with respect to any legal or attorney fees incurred by any of the Investors in connection with the Registration Statement and any amendments thereto; and
(g) advise the 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 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. Notwithstanding anything to The Investor acknowledges that the contrary herein, Company may include on the Registration Statement shall cover only Statement; shares of common stock of the Sharescompany for resale by certain other stockholders of the Company, and that the Company may file a subsequent registration statement for the resale of shares of common stock by certain other stockholder of the Company. In no other event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 of the Securities ActS-8, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best efforts” obligation under Section 7.1(b) if, owing to a review of the Registration Statement by the SEC staff, the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such review, the Company shall have used its best efforts to cause the Registration Statement to become effective at the earliest practicable date. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, 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 exercise its best efforts 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 (Esperion Therapeutics Inc/Mi)
Registration Procedures and Other Matters. The If and when the Company is required by the provisions of Section 1 or 2 to register Registrable Securities, the Company shall:
(a) subject a. furnish to receipt of necessary information from the Investor after prompt request from Selling Holders with respect to the Registrable Securities registered under any registration statement filed by the Company pursuant to the Investors to provide such information, prepare and file with the SEC, within 10 days after the Closing Date Sections 1 or 2 hereof (or, if such tenth day is a Saturday, Sunday or holiday, then by the next succeeding business day), a registration statement on Form S-3 (the “Registration Statement”) to enable the resale of the Shares by the Investors from time to time through the automated quotation system of the Nasdaq National Market or in privately-negotiated transactions;
(b) subject to receipt of necessary information from the Investor after prompt request from the Company to the Investors to provide such information, use its best efforts to cause the Registration Statement to become effective within 45 days after the Registration Statement is filed by the Company, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC in such 45-day period any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c) use its best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement current, effective and free from any material misstatement or omission to state a material fact for a period 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 without restriction by the volume limitations of Rule 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses prospectuses and Preliminary Prospectuses preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor Selling Holders may reasonably request in writingrequest, 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 Selling Holders;
b. file documents required for compliance 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 any Selling Holder and use its reasonable best efforts to maintain such blue sky qualifications during until the period the Company is required date on which there ceases to maintain the effectiveness of the Registration Statement pursuant to Section 7.1(c)be any Registrable Securities outstanding; 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) c. bear all reasonable expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 (other than any underwriting discounts 1 or commissions, brokers’ fees and similar selling expenses, and any other fees or expenses incurred by the Investor, including attorneys’ fees) 2 hereof and the registration of the Shares Registrable Securities pursuant to the Registration Statement; and, including the fees of one legal counsel for all of the Selling Holders not to exceed US$25,000 for each Registration Statement;
(g) d. advise the Investor, Selling Holders promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation or threat of any proceeding for that purpose; and it will promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued. Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Shares. In no event at any time before the Registration Statement becomes effective with respect to the Shares shall the Company publicly announce or file any other registration statement, other than registrations on Form S-8 or for transactions covered by Rule 145 ; and
e. provide a “Plan of the Securities Act, without the prior written consent of a majority in interest of the Investors. The Investor acknowledges and agrees that the Company shall not be regarded to have breached its “best effortsDistribution” obligation under Section 7.1(b) if, owing to a review section of the Registration Statement by substantially in a form reasonably acceptable to the SEC staff, Selling Holders (subject to the comments of the SEC).
f. Promptly following the effective date of the Registration Statement does not become effective within 45 days after the Registration Statement is filed with the SEC, provided that following receipt of notice of such reviewStatement, the Company shall have used advise its transfer agent that the Registrable Securities covered by such Registration Statement are subject to an effective registration statement and can be reissued free of restrictive legend upon notice of a sale by a Selling Holder and confirmation by such Selling Holder that it has complied with the plan of distribution set forth in the Registration Statement and the prospectus delivery requirements of applicable securities laws; provided that the Company has not advised the transfer agent orally or in writing that such Registration Statement has been suspended; provided, further, that in the event the Company’s transfer agent requires an opinion of counsel to the Company for any such reissuance, the Company shall use its reasonable best efforts to cause its counsel to issue an opinion to the Registration Statement to become effective at transfer agent stating the earliest practicable date. The Company understands that the Investor disclaims being foregoing within three business days after any such request for an underwriter, but the Investor being deemed an underwriter opinion by the SEC shall not relieve the Company of any obligations it has hereunder; provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SECtransfer agent.
Appears in 1 contract
