Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following: (a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”): (i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing. (ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements. (iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder. (iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions. (v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus. (vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time. (vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel. (viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange. (b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading. (c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company. (d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability. (e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries. (f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date. (g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement. (h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph. (i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 6 contracts
Samples: Securities Purchase and Registration Rights Agreement, Securities Purchase and Registration Rights Agreement (Star Scientific Inc), Securities Purchase and Registration Rights Agreement (Star Scientific Inc)
Registration Requirements. (a) As promptly as practicable following the Closing Date, but in any event within a period of 90 days following the Closing Date, the Corporation shall prepare and file with the Securities and Exchange Commission a Registration Statement on Form S-3 for the purpose of registering the resale by the Subscriber (or the Subscriber's affiliates) of the Purchased Shares under the Securities Act.
(b) The Company Corporation shall use its reasonable best efforts to effect pay all Registration Expenses (as defined below) in connection with any registration, qualification or compliance hereunder. Registration Expenses shall mean all expenses incurred by the Corporation in complying with the registration of the resale of the Registrable Securities (provisions herein described, including, without limitation, all registration, qualification and filing fees, printing expenses, escrow fees, fees and disbursements of counsel for the execution of an undertaking to file post-effective amendmentsCorporation, appropriate qualification under applicable blue sky fees and expenses, and the expense of any special audits incident to or other state securities laws and appropriate required by any such registration.
(c) In the case of the registration effected by the Corporation pursuant to these registration provisions, the Corporation will use its best efforts to: (i) cause the Registration Statement to become effective within one hundred fifty (150) days of the Closing Date, (ii) keep such registration effective until the earlier of (a) the second anniversary of the Closing Date, (b) such date as all of the Purchased Shares have been resold by the Subscriber thereof, or (c) such time as all of the Purchased Shares held by the Subscriber can be sold within a given three-month period without compliance with applicable regulations issued the registration requirements of the Securities Act pursuant to Rule 144 under the Securities Act; (iii) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC Securities and Exchange Commission such amendments and supplements to such the Registration Statement and the prospectus used in connection with such the Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company securities covered by such the Registration Statement. In ; (iv) furnish such number of prospectuses and other documents incident thereto, including any amendment of or supplement to the case of amendments and supplements prospectus, as the Subscriber from time to a Registration Statement which are required time may reasonably request; (v) cause all Purchased Shares registered as described herein to be filed listed on each securities exchange and quoted on each quotation service on which similar securities issued by the Corporation are then listed or quoted; (vi) provide a transfer agent and registrar for all Purchased Shares registered pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until and a CUSIP number for all such Holder’s receipt Purchased Shares; (vii) otherwise use its best efforts to comply with all applicable rules and regulations of the copies Securities and Exchange Commission; and (viii) file the documents required of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised Corporation and otherwise use its best efforts to maintain requisite blue sky clearance in (A) all jurisdictions in which any of the Purchased Shares are originally sold and (B) all other states reasonably specified in writing by the Company Subscriber, provided as to clause (B), however, that in no event shall the use Corporation be required to qualify to do business or consent to service of the applicable Prospectus may be resumed, and, process in either case, any state in which it is not now so qualified or has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraphnot so consented.
(id) If requested by a Holder, the Company The Corporation shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating furnish to the Subscriber upon request a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary in order to facilitate the public sale and distribution or other disposition of Registrable Securities, including, without limitation, information with respect all or any of the Purchased Shares held by the Subscriber.
(e) With a view to making available to the number Subscriber the benefits of Registrable Rule 144 promulgated under the Securities being offered or sold, the purchase price being paid therefor Act ("Rule 144") and any other terms rule or regulation of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.the
Appears in 4 contracts
Samples: Subscription Agreement (Ramsay Health Care Inc), Subscription Agreement (Ramsay Health Care Inc), Subscription Agreement (Ramsay Health Care Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible not later than ninety (90) days after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-KClosing, prepare and file with the Commission a registration statement with on Form S-3, or if Form S-3 is not available, Form S-1 or such other registration statement form that is available to the Commission Company, and take all such other actions as are necessary to ensure that there is an effective “shelf” registration statement containing a prospectus that remains current covering (and to qualify under required U.S. state securities laws, if any) the offer and sale of all Registrable Securities by the Holders on a continuous or delayed basis pursuant to Rule 415 under the Securities Act on Form S-3 under of the Securities Act (or in the event that the Company is ineligible to use such formregistration statement, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Resale Shelf Registration Statement”). The number Company shall use reasonable best efforts to cause the Commission to declare the Resale Shelf Registration Statement effective as soon as possible thereafter but in any event within one hundred fifty (150) days of shares of Common Stock initially included in such the Closing, and to remain effective and the prospectus contained therein current until all Holders cease to hold Registrable Securities. The Resale Shelf Registration Statement shall provide for any method or combination of methods of resale of Registrable Securities legally available to, and requested by, the Holders, and shall comply with the relevant provisions of the Securities Act and Exchange Act. At the time the Resale Shelf Registration Statement is declared effective, each Investor shall be named as a selling securityholder in the Resale Shelf Registration Statement and the related prospectus in such a manner as to permit such Investor to deliver such prospectus to purchasers of Registrable Securities in accordance with applicable law. If the Resale Shelf Registration Statement is on Form S-3 and ceases to be effective, then the Company shall, as soon as practicable but in any event no less later than the sum earlier of (Ai) if the Shares Company has filed with the Commission all periodic reports required to be filed under the Exchange Act, sixty (60) days after the date on which the Resale Shelf Registration Statement ceased to be effective and (Bii) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter if the Company has not filed with the Commission all periodic reports required to be filed under the Exchange Act, sixty (60) days after the date on which the Company files such reports with the Commission, prepare and file with the Commission a post-effective amendment to the Resale Shelf Registration Statement or new registration statement on an available form covering all the Registrable Securities, and shall use its reasonable best efforts to cause such Registration Statement and other filings registration statement to be declared effective as soon as possible, and in any event prior to 90 by the Commission within seventy-five (75) days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any after such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and to maintain the effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish registration statement until all Holders cease to each Holder hold Registrable Securities. Upon effectiveness, such numbers of copies of a current prospectus conforming with registration statement shall constitute the requirements of the Act, copies of the “Resale Shelf Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder” for all purposes under this Agreement.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 4 contracts
Samples: Stockholders Agreement, Stockholders Agreement (Concrete Pumping Holdings, Inc.), Rollover Agreement (Industrea Acquisition Corp.)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously As soon as possible after following the filing time as of which the Report on Form 10-K for Registration Statement (as defined in the year ended December 31Separation Agreement) is declared effective by the Securities and Exchange Commission but in any case before the Distribution Date, 2004, including the filing of TM agrees that it shall file a Form 10-K/A containing S-8 Registration Statement and a management report Form S-3 Registration Statement with respect to and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement with the Commission cause to be registered pursuant to Rule 415 under the Securities Act on Form S-3 of 1933, as amended, the shares of TM Common Stock authorized for issuance under the Securities XX Xxxx-Term Incentive Plan as required pursuant to such Act (and any applicable rules or in the event that the Company is ineligible regulations thereunder, with such registration to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available effective prior to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchangeDistribution Date.
(b) In As soon as possible following the event time as of which the Registration Statement has become (as defined in the Separation Agreement) is declared effective andby the Securities and Exchange Commission but in any case before the Distribution Date, afterwards, any Holder’s ability to sell Registrable Securities under the Interval agrees that it shall file a Form S-8 Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order and a Form S-3 Registration Statement with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of material fact or omits to state a material fact required and cause to be stated therein or necessary registered pursuant to make the statements therein not misleading in light Securities Act of the circumstances then existing, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus1933, as so amended, shall not contain an untrue statement the shares of a material fact Interval Common Stock authorized for issuance under the Interval Long-Term Incentive Plan as required pursuant to such Act and any applicable rules or omit to state a material fact required regulations thereunder, with such registration to be stated therein or necessary effective prior to make the statements not misleadingDistribution Date.
(c) If As soon as possible following the Holder(stime as of which the Registration Statement (as defined in the Separation Agreement) intend is declared effective by the Securities and Exchange Commission but in any case before the Distribution Date, HSN agrees that it shall file a Form S-8 Registration Statement and a Form S-3 Registration Statement with respect to distribute and cause to be registered pursuant to the Registrable Securities by means Act of an underwriting1933, as amended, the Holder(s) shall so advise shares of HSN Common Stock authorized for issuance under the Company. Any HSN Long-Term Incentive Plan as required pursuant to such underwriting may only Act and any applicable rules or regulations thereunder, with such registration to be administered by nationally or regionally recognized investment bankers reasonably satisfactory effective prior to the CompanyDistribution Date.
(d) The Company shall enter into such customary agreements As soon as possible following the time as of which the Registration Statement (including an underwriting agreement containing such representations and warranties as defined in the Separation Agreement) is declared effective by the Company Securities and such other terms Exchange Commission but in any case before the Distribution Date, Tree agrees that it shall file a Form S-8 Registration Statement and provisionsa Form S-3 Registration Statement with respect to and cause to be registered pursuant to the Securities Act of 1933, as are customarily contained in underwriting agreements amended, the shares of Tree Common Stock authorized for comparable offerings issuance under the Tree Long-Term Incentive Plan as required pursuant to such Act and are reasonably satisfactory any applicable rules or regulations thereunder, with such registration to be effective prior to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availabilityDistribution Date.
(e) The Company IAC agrees that, following the Distribution Date, it shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition use reasonable efforts to continue to maintain a Form S-8 Registration Statement with respect to and cause to be registered pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to of 1933, as amended, the disposition shares of all Registrable Securities of IAC Common Stock authorized for issuance under the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are IAC Long-Term Incentive Plans as required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement applicable rules or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securitiesregulations thereunder.
Appears in 4 contracts
Samples: Employee Matters Agreement (Tree.com, Inc.), Employee Matters Agreement (Ticketmaster), Employee Matters Agreement (HSN, Inc.)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):Closing Date:
(i) But in any event within 30 by the later (i) of March 5, 2004, or (ii) twenty-five (25) days of after the filing of the Company’s 2004 10-KClosing Date, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after as soon as Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “"REGISTRATION STATEMENT"), which Registration Statement”, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of the Note. The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) 1.5 times the sum of the number of Common Shares and (B) the Warrant Shares that are issuable upon full exercise conversion of the WarrantNote as of the date of this Agreement, at the then applicable Conversion Price (as defined in the Note). Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days no later than the following date, as appropriate (orthe "REQUIRED EFFECTIVE DATE"): (A), if the SEC elects to notifies that the Company that the SEC will not review the Registration Statement, 180 daysthe Required Effective Date shall be five (5) following days after the filing of SEC provides such notification, or (B) if the Company’s 2004 10-K SEC notifies the Company that it will review the Registration Statement, then the Required Effective Date shall be sixty (60) days after the “Effectiveness Deadline”)Company receives the first written comments on the Registration Statement from the SEC. Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder that has Common Shares included in the Registration Statement such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” "Blue Sky" laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify promptly each Holder immediately that has Common Shares included in the Registration Statement of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holderevent) of which the Company has knowledge as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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 existingexisting (each an "EVENT"), and use its reasonable best efforts to promptly update and/or correct such prospectus. Each Holder will hold in confidence and will not make any disclosure of any such Event and any related information disclosed by the Company.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel[Intentionally omitted.]
(viii) List the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed and prepare and file any required filings with such principal the Nasdaq National Market System or any other exchange or market where the Common Shares are traded.
(ix) Take all steps reasonably necessary to enable Holders to avail themselves of the prospectus delivery mechanism set forth in Rule 153 (or exchangesuccessor thereto) under the Act.
(b) In Notwithstanding the event obligations under Section 2(a)(v) or any provision of this Agreement, if (i) in the good faith judgment of the Company, following consultation with legal counsel, it would be detrimental to the Company and its stockholders for resales of Registrable Securities to be made pursuant to the Registration Statement has become effective and, afterwards, any Holder’s ability due to sell Registrable Securities under the existence of a material development or potential material development involving the Company that the Company would be obligated to disclose in the Registration Statement is suspended for more than (i) 45 days in any 90-day period Statement, which disclosure would be premature or otherwise inadvisable at such time or would have a material adverse effect upon the Company and its stockholders, or (ii) 90 days in any calendar yearthe good faith judgment of the Company, including without limitation by reason it would adversely affect or require premature disclosure of the filing of a Company-initiated registration of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result class of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 existingits equity securities, then the Company shall take such action as may be necessary will have the right to amend or supplement such suspend the use of the Registration Statement or prospectus such for a period of not more than 30 consecutive calendar days, but only if the Company reasonably concludes, after consultation with outside legal counsel, that such the failure to suspend the use of the Registration Statement or prospectus, as so amended, shall not contain an untrue statement such would create a risk of a material fact liability or omit to state a material fact required to be stated therein violation under applicable securities laws or necessary to make the statements not misleadingregulations.
(c) If Set forth below in this Section 2(c) are (I) events that may arise that the Holder(s) intend to distribute Purchaser considers will interfere with the Registrable Securities by means full enjoyment of an underwritingtheir rights under this Agreement, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration StatementPurchase Agreement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of Notes (the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi"INTERFERING EVENTS"), and upon notice (II) certain remedies applicable in each of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraphthese events.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 3 contracts
Samples: Registration Rights Agreement (Liquidmetal Technologies Inc), Registration Rights Agreement (Liquidmetal Technologies Inc), Securities Purchase Agreement (Liquidmetal Technologies Inc)
Registration Requirements. The Company shall use its commercially reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky Blue Sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the HolderInvestors, provided that in no event shall the Company be required to register the resale of the Registrable Securities in an underwritten offering. Such commercially reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shallshall use commercially reasonable efforts to, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):possible:
(i) But in any event within 30 days of prepare and promptly following the filing of Registration Statement on Form S-4 by the Company’s 2004 10-KCompany (in no event later than January 15, prepare and 2016), file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders Investors as selling stockholders (not underwriters) of the Registrable Securities (the “Investor Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its commercially reasonable best efforts to cause such Investor Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days possible following its filing.
(or, if the SEC elects to review the Registration Statement, 180 daysii) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC Commission comments, inquiries and requests, and shall request acceleration of effectiveness of the Investor Registration Statement at the earliest possible date. The Company shall provide the Holders Investors reasonable opportunity to review the portions of any such Investor Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders Investors prior to filing.
(iiiii) Prepare prepare and file with the SEC Commission such amendments and supplements to such Investor Registration Statement and the prospectus Investor Prospectus used in connection with such Investor Registration Statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Investor Registration Statement and notify the Holders Investors of the filing and effectiveness of such Investor Registration Statement and any amendments or supplements.
(iiiiv) Furnish furnish or otherwise make available to each Holder such numbers of Investor copies of a current prospectus included in the Investor Registration Statement conforming with the requirements of the Securities Act, copies of the Investor Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder Investor may reasonably require in order to facilitate the disposition of Registrable Securities owned by such HolderInvestor.
(ivv) Register register and qualify the securities covered by such the Investor Registration Statement under the securities or “blue skyBlue Sky” laws Laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(vvi) Notify notify each Holder immediately Co-Investor of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holderevents) as a result of which the prospectus Investor Prospectus (including any supplements thereto or thereof) included in such Investor Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and use its commercially reasonable best efforts to promptly update and/or correct such prospectus.
(vivii) Notify notify each Holder immediately Investor of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Investor Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its commercially reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List if required by the Registrable Securities covered by such Registration Statement on NASDAQ or the principal securities exchange and/or market on which the Common Stock is Company’s common shares are then listed listed, qualify the Registrable Securities covered by such Investor Registration Statement for listing on the NASDAQ or the principal securities exchange and/or market on which the Company’s common shares are then listed, including the preparation and prepare and file filing of any required filings with such principal market or exchange.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus Investor Prospectus used in connection with the Investor Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or any self-regulatory organization, or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (iib) the Company provides the Holders Investors with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use commercially reasonable best efforts to cause such suspension to terminate at the earliest possible date. Notwithstanding the foregoing, the use of any Investor Prospectus may be suspended by reason of clause (ii) of this subsection (b) for a period of time not to exceed (A) sixty consecutive days for any one such suspension or (B) an aggregate of ninety days during the Investor Registration Period.
(gc) The Company shall prepare and file with the SEC Commission such amendments (including post-effective amendments) and supplements to a the Investor Registration Statement and the prospectus Investor Prospectus used in connection with such the Investor Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such the Investor Registration Statement effective at all times during the Investor Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such the Investor Registration Statement. In the case of amendments and supplements to a the Investor Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h1.2(c)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Exchange Act, the Company shall have incorporated such report by reference into such the Investor Registration Statement, if applicable, or shall file such amendments or supplements with the SEC Commission on the same day on which the 1934 Exchange Act report is filed which created the requirement for the Company to amend or supplement such the Investor Registration Statement.
(hd) Each Holder Investor agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v1.2(a)(vi) or 5.2(a)(vi1.2(a)(vii), and upon notice of any suspension under Section 5.2(f1.2(b), such Holder Investor will forthwith discontinue disposition of such Registrable Securities under the Investor Registration Statement until such HolderInvestor’s receipt of the copies of the supplemented Prospectus prospectus and/or amended amendment to the Investor Registration Statement contemplated by this Section 5.21.2, or until it is advised in writing by the Company that the use of the applicable Prospectus prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus prospectus or the Investor Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(ie) If requested by a Holderan Investor, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder an Investor reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price Subscription Price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; , (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; , and (iii) as soon as practicable, supplement or make amendments to any the Investor Registration Statement if reasonably requested by a Holder an Investor holding any Registrable Securities.
Appears in 3 contracts
Samples: Share Subscription Agreement (QLT Inc/Bc), Share Subscription Agreement (Tribute Pharmaceuticals Canada Inc.), Share Subscription Agreement (Pozen Inc /Nc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, As promptly as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including practicable following the filing of a Registration Statement on Form 10-K/A containing a management report and an auditor’s report on the effectiveness of S-4 by the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
Company shall (i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement cause to be filed with the Commission pursuant to Rule 415 under (no later than January 15, 2016) the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares on an eligible form and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its commercially reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of have the Registration Statement or declared effective under the threat or initiation of any proceedings for that purposeSecurities Act as promptly as practicable after such filing. The Company shall use its commercially reasonable best efforts to prevent keep the Registration Statement current and effective until the time the Distribution is completed. In addition, until the completion of the Distribution, the Company shall take all reasonably necessary steps and proceedings as may be required from time to time under the Canadian Securities Laws to maintain its status as a reporting issuer under applicable Canadian Securities Laws, and cure any default outstanding as of the date hereof. Each of Purchaser and Pozen shall furnish the Company all information concerning such person and its Affiliates, and provide such other assistance, as may be reasonably requested in connection with the preparation and filing of the Registration Statement. The Registration Statement shall include all information reasonably requested by the Purchaser to be included therein. The Company shall promptly notify the other upon the receipt of any comments from the Commission or any request from the Commission for amendments or supplements to the Registration Statement, and shall provide Purchaser with copies of all correspondence between it and its representatives, on one hand, and the Commission or the Canadian Commissions, on the other hand. The Company shall use its commercially reasonable efforts to respond as promptly as practicable to any comments from the Commission with respect to the Registration Statement. Notwithstanding the foregoing, prior to filing (i) the Registration Statement (or any amendment or supplement thereto) or responding to any comments of the Commission with respect thereto, the Company shall provide Purchaser an opportunity to review and comment on such document or response (including the proposed final version of such document or response). The Company shall advise Purchaser, promptly after receipt of notice thereof, of the time of effectiveness of the Registration Statement, the issuance of any stop order andrelating thereto, if and the Company shall use its commercially reasonable efforts to have any such stop order or suspension lifted, reversed or otherwise terminated. The Company shall also take any other action (other than qualifying to do business in any jurisdiction in which it is issuednot now so qualified) required to be taken under the Securities Act, to obtain the lifting thereof at Exchange Act, the earliest possible time.
(vii) Permit counsel to Canadian Securities Laws, any applicable foreign or state securities or “Blue Sky” Laws and the Holders to review rules and regulations thereunder in connection with the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings transactions associated with such principal market or exchangethis Agreement.
(b) In If, prior to the event completion of the Registration Statement has become effective and, afterwardsDistribution, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order event occurs with respect to the Company or Pozen or any of their respective Subsidiaries, or any change occurs with respect to other information supplied by the Company or Pozen for inclusion in the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of material fact or omits to state a material fact is required to be stated therein described in an amendment of, or necessary to make a supplement to, the statements therein not misleading in light of the circumstances then existingRegistration Statement, then the Company shall take promptly notify Purchaser of such action event or Pozen shall promptly notify the Company and Purchaser of such event, as may be applicable, and the Company shall use commercially reasonable efforts to promptly file with (i) the Commission any necessary to amend amendment or supplement such to the Registration Statement or prospectus such that such Registration Statement or prospectusStatement, and, as so amended, required by Law and disseminate the information contained in such amendment or supplement. Nothing in this Section 1.2(b) shall not contain an untrue statement limit the obligations of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleadingany party under Section 1.2(a).
(c) If prior to the Holder(s) intend completion of the Distribution, any event occurs with respect to distribute Purchaser or any of its Subsidiaries, or any change occurs with respect to other information supplied by Purchaser for inclusion in the Registrable Securities by means of Registration Statement, which is required to be described in an underwritingamendment of, or a supplement to, the Holder(sRegistration Statement, Purchaser shall promptly notify the Company of such event, and the Company shall use commercially reasonable efforts to promptly file with the Commission any necessary amendment or supplement to the Registration Statement as required by Law, disseminate the information contained in such amendment or supplement. Nothing in this Section 1.2(c) shall so advise limit the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Companyobligations of any party under Section 1.2(a).
(d) The Company shall enter into such customary agreements deliver to Purchaser, without charge, as many copies of the Prospectus and any amendment or supplement thereto as Purchaser may reasonably request in the context of the Distribution (including an underwriting agreement containing such representations and warranties by it being understood that the Company consents to the use of the Prospectus and any amendment or supplement thereto in connection with the Distribution) and such other terms and provisions, documents as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale Purchaser may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availabilityDistribution.
(e) The Company shall make available for inspection by reasonably cooperate with Purchaser to facilitate the Holderstimely preparation and delivery of certificates, representative(s) with requisite CUSIP numbers, representing the Purchaser Shares to be distributed to the holders of all the Holders together, any underwriter participating in any disposition Purchaser Common Shares pursuant to a Registration Statement, the Distribution and not bearing any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiariesrestrictive legends.
(f) The Company may suspend will use its commercially reasonable efforts to procure the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance cooperation of the Company’s obligations hereunder), it is transfer agent in settling the best interests distribution of the Company Purchaser Shares to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature holders of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed Purchaser Common Shares pursuant to Rule 424 promulgated under the Securities ActDistribution, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act including with respect to the disposition transfer of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10physical security instruments into book-K, Form 10-Q or Form 8-K or entry form in accordance with any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if procedures reasonably requested by a Holder holding any Registrable SecuritiesPurchaser.
Appears in 3 contracts
Samples: Share Subscription Agreement (QLT Inc/Bc), Share Subscription Agreement (Pozen Inc /Nc), Share Subscription Agreement (Tribute Pharmaceuticals Canada Inc.)
Registration Requirements. The Company shall use its commercially reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky Blue Sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the HolderInvestors, provided that in no event shall the Company be required to register the resale of the Registrable Securities in an underwritten offering. Such commercially reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shallshall use commercially reasonable efforts to, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):possible:
(i) But prepare and promptly following the date on which the Form S-4 (as defined in any the Merger Agreement) is declared effective by the SEC (and in no event within 30 days later than the tenth (10th) Business Day following the date of effectiveness of the filing of the Company’s 2004 10-KForm S-4), prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders Investors as selling stockholders (not underwriters) of the Registrable Securities (the “Investor Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its commercially reasonable best efforts to cause such Investor Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days possible following its filing.
(or, if the SEC elects to review the Registration Statement, 180 daysii) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC Commission comments, inquiries and requests, and shall request acceleration of effectiveness of the Investor Registration Statement at the earliest possible date. The Company shall provide the Holders Investors reasonable opportunity to review the portions of any such Investor Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders Investors prior to filingfiling (such reasonable opportunity being no less than 3 Business Days prior to the initial filing of any Investor Registration Statement and one Business Day prior to the filing of any amendment or supplement thereto).
(iiiii) Prepare prepare and file with the SEC Commission such amendments and supplements to such Investor Registration Statement and the prospectus Investor Prospectus used in connection with such Investor Registration Statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Investor Registration Statement and notify the Holders Investors of the filing and effectiveness of such Investor Registration Statement and any amendments or supplements.
(iiiiv) Furnish furnish or otherwise make available to each Holder such numbers of Investor copies of a current prospectus included in the Investor Registration Statement conforming with the requirements of the Securities Act, copies of the Investor Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder Investor may reasonably require in order to facilitate the disposition of Registrable Securities owned by such HolderInvestor.
(ivv) Register register and qualify the securities covered by such the Investor Registration Statement under the securities or “blue skyBlue Sky” laws Laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(vvi) Notify notify each Holder immediately Investor of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holderevents) as a result of which the prospectus Investor Prospectus (including any supplements thereto or thereof) included in such Investor Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and use its commercially reasonable best efforts to promptly update and/or correct such prospectus.
(vivii) Notify notify each Holder immediately Investor of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Investor Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its commercially reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List if required by the Registrable Securities covered by such Registration Statement on NASDAQ or the principal securities exchange and/or market on which the Common Stock is Company’s common shares are then listed listed, qualify the Registrable Securities covered by such Investor Registration Statement for listing on the NASDAQ or the principal securities exchange and/or market on which the Company’s common shares are then listed, including the preparation and prepare and file filing of any required filings with such principal market or exchange.
(bix) In Promptly notify each Investor who holds Registrable Securities covered by the event the Investor Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than of (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason the Company’s submission of any suspension or stop order an acceleration request with respect to the Investor Registration Statement Statement; (ii) the effectiveness on the actual effective date thereof; and (iii) the issuance of any “stop order” or order preventing or suspending the fact that an event has occurred as a result use of which any prospectus relating to the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleadingRegistrable Securities.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(fb) The Company may suspend the use of any prospectus Investor Prospectus used in connection with the Investor Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or any self-regulatory organization, or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (iib) the Company provides the Holders Investors with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use commercially reasonable best efforts to cause such suspension to terminate at the earliest possible date. Notwithstanding the foregoing, the use of any Investor Prospectus may be suspended by reason of clause (ii) of this subsection (b) for a period of time not to exceed (A) sixty (60) consecutive days for any one such suspension or (B) an aggregate of ninety (90) days during the Investor Registration Period; provided that the Company shall not utilize this right more than twice in any 12-month period.
(gc) The Company shall prepare and file with the SEC Commission such amendments (including post-effective amendments) and supplements to a the Investor Registration Statement and the prospectus Investor Prospectus used in connection with such the Investor Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such the Investor Registration Statement effective at all times during the Investor Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such the Investor Registration Statement. In the case of amendments and supplements to a the Investor Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h1.2(c)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Exchange Act, the Company shall have incorporated such report by reference into such the Investor Registration Statement, if applicable, or shall file such amendments or supplements with the SEC Commission on the same day on which the 1934 Exchange Act report is filed which created the requirement for the Company to amend or supplement such the Investor Registration Statement.
(hd) Each Holder Investor agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v1.2(a)(vi) or 5.2(a)(vi(a)(vii), and upon notice of any suspension under Section 5.2(f1.2(b), such Holder Investor will forthwith discontinue disposition of such Registrable Securities under the Investor Registration Statement until such HolderInvestor’s receipt of the copies of the supplemented Prospectus prospectus and/or amended amendment to the Investor Registration Statement contemplated by this Section 5.21.2, or until it is advised in writing by the Company that the use of the applicable Prospectus prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus prospectus or the Investor Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(ie) If requested by a Holderan Investor, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder an Investor reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price Subscription Price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; , (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; , and (iii) as soon as practicable, supplement or make amendments to any the Investor Registration Statement if reasonably requested by a Holder an Investor holding any Registrable Securities.
Appears in 3 contracts
Samples: Unit Subscription Agreement, Unit Subscription Agreement (QLT Inc/Bc), Unit Subscription Agreement (QLT Inc/Bc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):possible:
(i) But in any event within 30 60 days of the filing of the Company’s 2004 10-KClosing, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 120 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K Closing (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 3 contracts
Samples: Securities Purchase and Registration Rights Agreement (Star Scientific Inc), Securities Purchase and Registration Rights Agreement (Star Scientific Inc), Securities Purchase and Registration Rights Agreement (Star Scientific Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect (a) At any time after October 15, 2018, upon the registration written request of the resale Holders of at least sixty-six and two thirds percent (66 2/3%) of the Registrable Securities (includingthen outstanding, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file with the SEC a registration statement with on Form S-3 (or on Form S-1 if the Commission Company is then ineligible to use Form S-3) pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number ) as soon as reasonably practicable following the Company’s receipt of shares of Common Stock initially included such written request, but in such Registration Statement shall be no less event later than the sum of sixty (A60) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrantdays thereafter. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days no later than the following date, as appropriate (or, the “Required Effective Date”): (A) if the SEC elects to notifies the Company that the SEC will not review the Registration Statement, 180 daysthe Required Effective Date shall be five (5) following days after the filing of SEC provides such notification, or (B) if the Company’s 2004 10-K SEC notifies the Company that it will review the Registration Statement, then the Required Effective Date shall be sixty (60) days after the “Effectiveness Deadline”)Company receives the first written comments on the Registration Statement from the SEC. Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(iib) In connection with the registration of any Registrable Securities, the Company shall, as soon as practicable:
(i) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iiiii) Furnish to each Holder that has Registrable Securities included in the Registration Statement such numbers number of copies of a current prospectus conforming with the requirements of the Securities Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iviii) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” sky laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(viv) Notify promptly each Holder immediately that has Registrable Securities included in the Registration Statement of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holderevent) of which the Company has knowledge as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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 existingexisting (each an “Event”), and use its reasonable best efforts to promptly update and/or correct such prospectus. Each Holder will hold in confidence and will not make any disclosure of any such Event and any related information disclosed by the Company.
(viv) Notify each Holder immediately of the issuance by the Commission SEC or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viiivi) List the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed listed, to the extent such listing is permissible under the rules of such securities exchange or market, and prepare and file any corresponding required filings with such principal market securities exchange or exchange.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleadingmarket.
(c) If Notwithstanding the Holder(sobligations under Section 2(b)(iv) intend or any provision of this Agreement, if (i) in the good faith judgment of the Company, following consultation with legal counsel, it would be detrimental to distribute the Company and its stockholders for resales of Registrable Securities by means to be made pursuant to the Registration Statement due to the existence of an underwritinga material development or potential material development involving the Company that the Company would be obligated to disclose in the Registration Statement, which disclosure would be premature or otherwise inadvisable at such time or would have a material adverse effect upon the Holder(sCompany and its stockholders, or (ii) shall so advise in the good faith judgment of the Company. Any , it would adversely affect or require premature disclosure of the filing of a Company-initiated registration of any class of its equity securities, then the Company will have the right to suspend the use of the Registration Statement for a period of not more than thirty (30) consecutive calendar days, but only if the Company reasonably concludes, after consultation with outside legal counsel, that the failure to suspend the use of the Registration Statement as such underwriting may only be administered by nationally would create a risk of a material liability or regionally recognized investment bankers reasonably satisfactory to the Companyviolation under applicable securities laws or regulations.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by During the registration period, the Company and such other terms and provisionswill make available, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available upon reasonable advance notice during normal business hours, for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition Holder whose Registrable Securities are being sold pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all pertinent financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closingrecords, pertinent corporate documents and properties of the CompanyCompany (collectively, and the “Records”) as reasonably necessary to enable each such Holder to exercise its due diligence responsibility in connection with or related to the contemplated offering. The Company will cause the Company’s its officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would may reasonably be expected to be in conflict with any business request for purposes of the Company or its Subsidiariesperforming such due diligence.
(fe) The Company may suspend the Each Holder will hold in confidence, use of any prospectus used only in connection with the Registration Statement only contemplated offering and not make any disclosure of all Records and other information that the Company determines in the eventgood faith to be confidential, and for such period of time aswhich determination the Holders are so notified, unless (i) the disclosure of such Records is necessary to avoid or correct a suspension is required by the rules and regulations of the Commission misstatement or omission in any Registration Statement, (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court or government body of competent jurisdiction, (iii) the information in such Records has been made generally available to the public other than by disclosure in violation of this or any other agreement (to the knowledge of the relevant Holder), (iv) the Records or other information was developed independently by the Holder without breach of this Agreement, (v) the information was known to the Holder before receipt of such information from the Company, or (vi) the information was disclosed to the Holder by a third party not under an obligation of confidentiality. However, a Holder may make disclosure of such Records and other information to any attorney, adviser, or other third party retained by it is that needs to know the information as determined in good faith by the Board of Directors Holder (each, a “Holder Representative”), if the Holder advises each Holder Representative of the confidentiality provisions of this Section 2(e), but the Holder will be liable for any act or omission of a Holder Representative relative to such information as if the act or omission was that of the Holder. The Company is not required to disclose any confidential information in the Records to any Holder unless and until such Holder has entered into a confidentiality agreement (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially to the effect of this Section 2(e). Unless legally prohibited from so doing, each Holder will, upon learning that because disclosure of valid business reasons (not including Records containing confidential information is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the avoidance of Company and allow the Company, at the Company’s obligations hereunder)expense, it to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidential. Nothing herein will be deemed to limit the Holders’ ability to sell Registrable Securities in a manner that is otherwise consistent with applicable laws and regulations.
(f) If the Holders become entitled, pursuant to an event described in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) of the definition of Registrable Securities, to receive any securities in respect of Registrable Securities that were already included in a Registration Statement, subsequent to the date such Registration Statement is declared effective, and the Company provides is unable under the Holders securities laws to add such securities to the then effective Registration Statement, the Company shall promptly file, in accordance with written notice of such suspensionthe procedures set forth herein, which notice need not specify the nature of the event giving rise an additional Registration Statement with respect to such suspensionnewly Registrable Securities. The Company will shall use its reasonable best efforts to cause any such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such additional Registration Statement, which prospectus is when filed, to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement become effective at all times during the Registration Period within sixty (as defined below), and, during such period, comply with the provisions 60) days of the Securities Act with respect date that the need to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt arose. All of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of registration rights and remedies under this paragraph.
(i) If requested by a Holder, the Company Agreement shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating apply to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings registration of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in newly reserved shares and such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any new Registrable Securities.
Appears in 3 contracts
Samples: Registration Rights Agreement (ATRM Holdings, Inc.), Registration Rights Agreement (Lone Star Value Management LLC), Registration Rights Agreement (ATRM Holdings, Inc.)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):possible:
(i) But in any event within 30 60 days of the filing of the Company’s 2004 10-KClosing, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the WarrantWarrants (the “Registration Statement”). Thereafter the The Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 120 days (or, if the SEC Commission elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K Closing.
(the “Effectiveness Deadline”). ii) Without limiting the foregoing, the Company will promptly respond to all SEC Commission comments, inquiries and requests, and shall request acceleration of effectiveness of the Registration Statement at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(iiiii) Prepare and file with the SEC Commission such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iiiiv) Furnish or otherwise make available to each Holder such numbers of copies of a current prospectus included in the Registration Statement conforming with the requirements of the Securities Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(ivv) Register and qualify the securities covered by such the Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(vvi) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vivii) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(viiviii) Permit Upon request, permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Daysdays on which there is trading on the Nasdaq Global Market (the “Principal Market”) or such other market or exchange on which the Common Stock is then principally traded) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel, provided, however, that the Company shall not be obligated to comply with this Section 5.2(a)(viii) if compliance would cause the Company to fail to comply with any other provisions hereunder.
(viiiix) List If required by the Registrable Securities covered by such Registration Statement on Principal Market or the principal securities exchange and/or market on which the Common Stock is then listed listed, qualify the Registrable Securities covered by such Registration Statement for listing on the Principal Market or the principal securities exchange and/or market on which the Common Stock is then listed, including the preparation and prepare and file filing of any required filings with such principal market or exchange.
(b) In the event that the Registration Statement has become been declared effective by the Commission and, afterwards, any Holder’s ability to sell Registrable Securities registered for resale under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such the Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such the Registration Statement or the prospectus (including any supplements thereto) included in the Registration Statement, such that such the Registration Statement or the prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Subject to Section 5.2(c) above, the Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a the Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any the Registration Statement, all documents filed with the SEC Commission subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such the Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (iif)(ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC Commission such amendments (including post-effective amendments) and supplements to a the Registration Statement and the prospectus used in connection with such the Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such the Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such the Registration Statement. In the case of amendments and supplements to a the Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h5.2(g)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Exchange Act, the Company shall have incorporated such report by reference into such the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC Commission on the same day on which the 1934 Exchange Act report is filed which created the requirement for the Company to amend or supplement such the Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v5.2(a)(vi) or 5.2(a)(vi5.2(a)(vii), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus prospectus and/or amended amendment to the Registration Statement contemplated by this Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus prospectus or the Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; , (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; , and (iii) as soon as practicable, supplement or make amendments to any the Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 3 contracts
Samples: Securities Purchase and Registration Rights Agreement (Star Scientific Inc), Securities Purchase and Registration Rights Agreement (Star Scientific Inc), Securities Purchase Agreement (Star Scientific Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available hereby grants to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act Holder piggyback registration rights with respect to the disposition of all securities covered by such Underlying Shares. In the event the Company is filing a Registration Statement and for itself or on behalf of any of its shareholders, other than a Registration Statement covering the Company’s initial public offering or an offering exclusively to employees of the Company, the Company shall notify the Holders Holder in writing reasonably in advance of such filing (but at least five business days) and give the Holder the opportunity to include all or any party of the filing and effectiveness of such Registration Statement and any amendments Underlying Shares (whether or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictionsnot previously issued), to the extent required; provided permissible under the Act or any regulation promulgated thereunder. Upon the Holder’s notification that the Company shall not be required in connection therewith Holder desires to have all or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately portion of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) Underlying Shares included in such Registration Statementregistration, as then in effectthe Company shall, includes an untrue statement of material fact at no cost or omits expense to state a material fact required the Holder, include or cause to be stated therein or necessary to make included in such registration statement the statements therein not misleading Underlying Shares so identified by the Holder. Notwithstanding any other provision of this Section 5, in light the case of an underwritten public offering, if the managing underwriter determines that market factors require a limitation of the circumstances then existingnumber of shares to be underwritten, and use its reasonable best efforts the managing underwriter may limit, or exclude, the number of shares (including those of Holder) to promptly update and/or correct be included in such prospectus.
(vi) Notify each Holder immediately Piggyback Registration. If limited, Xxxxxx’s shares will be registered pro rata with any other holders of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchangeCommon Share Equivalents having Registration Rights.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period Holder shall pay all sales commissions or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order other similar selling charges with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in Common Stock sold by Holder pursuant to such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations pay all registration and warranties by the filing fees, fees and expenses of compliance with federal and state securities laws, printing expenses, messenger and delivery expenses, fees and disbursements of counsel and accountants for Company and reasonable fees and expenses of one counsel, selected by Holder, unless the applicable state securities laws require that stockholders whose securities are being registered pay their pro rata share of such other terms fees, expenses and provisionsdisbursements, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take which case Holder shall pay its pro rata share of all such other actions as the Holder or the underwriters participating in such offering fees, expenses and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes disbursements based on its pro rata share of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the total number of Registrable Securities shares being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securitiesregistered.
Appears in 3 contracts
Samples: Securities Agreement (Universal Guardian Holdings Inc), Securities Agreement (Universal Guardian Holdings Inc), Securities Agreement (Universal Guardian Holdings Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):possible:
(i) But in any event within 30 75 days of the filing of the Company’s 2004 10-KClosing, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities Warrant Shares issuable upon full exercise of the Warrants (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 135 days (or, if the SEC Commission elects to review the Registration Statement, 180 195 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible dateClosing. The Company shall provide the Holders reasonable opportunity Company, in its sole discretion, may elect to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare include for offer and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used sale securities in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect additional to the disposition of all securities covered by such Registrable Securities in the Registration Statement and notify Statement. By 5:30 p.m. (New York time) on the Holders of Business Day immediately following the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies effective date of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required file with the Commission in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(vaccordance with Rule 424(b) Notify each Holder immediately of under the happening of any event (but not Securities Act the substance or details of any such events unless specifically requested by a Holder) as a result of which the final prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with sales pursuant to the applicable Registration Statement only in the event, and for such period of time as, (i) whether or not such a suspension prospectus is technically required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereundersuch rule), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 2 contracts
Samples: Securities Purchase and Registration Rights Agreement (Star Scientific Inc), Securities Purchase and Registration Rights Agreement (Star Scientific Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):Closing Date:
(i) But in any event within 30 24 days of the filing of Closing (the Company’s 2004 10-K“Filing Deadline”), prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after as soon as Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities and, to the extent practicable, no other securities other than shares of Common Stock issued pursuant to (A) the Securities Purchase Agreement dated as of March 25, 2004, between the Company and Manchester Securities Corp., and the shares of Common Stock issuable upon conversion of the convertible debentures and exercise of the warrants issued in connection therewith, (B) the Restated Non-Circumvention and Finder’s Fee Agreement dated March 24, 2004, including shares issued upon exercise of warrants issued in connection therewith, and (C) securities purchase agreements entered into by the Company and purchasers substantially contemporaneously with this Agreement (including pursuant to any option to purchase Common Stock contained therein) (the “Registration Statement”), which Registration Statement, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416). The number of shares of Common Stock initially included in such Registration Statement shall be no less than (x) 100% of the sum of (A) Common Shares acquired by Purchasers pursuant to the Shares Purchase Agreement, and (By) to the Warrant extent permitted by the forms, rules and regulations of the Commission, 100% of the Option Shares issuable upon full exercise of the WarrantOption in full pursuant to the Purchase Agreement. Nothing in the preceding sentence will limit the Company’s obligations to reserve shares of Common Stock pursuant to Section 3.3 of the Purchase Agreement. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 69 days (or, if the SEC elects to review the Registration Statement, 180 129 days) following the filing of the Company’s 2004 10-K Closing Date (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue skyBlue Sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) Days prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchangethe Principal Market.
(b) In Set forth below in this Section 2(b) are (I) events that may arise that the event Purchasers consider will interfere with the Registration Statement has become effective andfull enjoyment of their rights under this Agreement and the Purchase Agreement (the “Interfering Events”), afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than and (II) certain remedies applicable in each of these events. Paragraphs (i) 45 days in any 90-day period or through (iiiii) 90 days in any calendar yearof this Section 2(b) describe the Interfering Events, including without limitation by reason of any suspension or stop order with respect provide a remedy to the Registration Statement or Purchasers if an Interfering Event occurs. Paragraph (iv) provides, inter alia, that the fact that an event each Purchaser has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of material fact or omits right 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspensionspecific performance. The Company will use reasonable best efforts preceding paragraphs in this Section 2(b) are meant to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, serve only as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant an introduction to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi2(b), are for convenience only, and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed not to be incorporated by reference considered in such Prospectus applying, construing or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of interpreting this paragraphSection 2(b).
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 2 contracts
Samples: Registration Rights Agreement (Star Scientific Inc), Registration Rights Agreement (Star Scientific Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the HolderPurchaser. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The As soon as practicable, but in no event later than six months from the Closing Date (the “Required Filing Date”) (provided, however, that in the event that the Company shall, as expeditiously as possible after is informed by the filing of Commission that the Report on Form 10-K for the year ended December 31, 2004, including the filing Registration Statement is deemed to be part of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of serial registration covering the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectivelysecurities, the “Company’s 2004 10-K”):Purchaser agrees to extend the Required Filing Date to such period so that the Company may comply with the Commission) the Company shall:
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act (“Rule 415”) on Form S-3 S-1 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders Purchaser as selling stockholders (not underwriters) of the Registrable Securities (the a “Registration Statement”), which Registration Statement, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such number of additional shares of Common Stock as may become issuable upon the exercise of the Warrants or pursuant to the applicable anti-dilution provisions or other adjustment provisions of the Warrants. The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise 120% of the Warrant. Thereafter maximum number of shares of Common Stock which may be included in a Registration Statement without exceeding registration limitations imposed by the SEC pursuant to Rule 415 (the “Rule 415 Amount”) in a comment letter addressed to the Company; provided that the Company shall use its commercially reasonable efforts to contest such limitation, but in any event not less than approximately 5,000,000 shares of Common Stock. Thereafter, the Company shall use its best efforts to cause such Registration Statement and other filings to be declared effective effective, as soon as possible (the “Required Effective Date”). The Company shall use its best efforts to ensure that each subsequent Registration Statement is filed as soon as possible, but in no event sooner than six (6) months from the effectiveness of a previously filed Registration Statement. In the event that less than all of the Registrable Securities are included in a Registration Statement as a result of the limitations described in this paragraph, then the Company will (i) reduce on a proportionate basis the number of Registrable Securities of the Purchaser included in such Registration Statement and in any event prior to 90 days (orii) file additional Registration Statements, if each registering the Rule 415 Amount, seriatim, until all of the Registrable Securities have been registered. The Required Filing Date and the Required Effective Date of each such additional Registration Statement shall be within a reasonable time after the first day such Registration Statement may be filed without objection by the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”)based on Rule 415. Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date.
(ii) If at any time the staff of the Commission takes the position that the offering of some or all of the Registrable Securities in a Registration Statement is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 under the Securities Act or requires any Investor to be named as an “underwriter” (an “SEC Objection”), the Company shall promptly notify the Purchaser of such SEC Objection and if the Investor shall request, the Company shall use its commercially reasonable efforts to persuade the staff of the Commission 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 and that the Investor is not an “underwriter” (a “Rule 415 Response Effort”). The Investor shall have the right to participate or have its counsel participate in any meetings or discussions with the staff of the Commission regarding the Rule 415 Response Effort and to comment or have its counsel comment on any written submission made to the staff of the Commission with respect to the Rule 415 Response Effort, and to have such comments relayed to the staff of the Commission with the consent of the Company, not to be unreasonably withheld. No such Rule 415 Response Effort shall be made to the staff of the Commission to which the Investor’s counsel reasonably objects. In the event that, despite the Company’s commercially reasonable efforts and compliance with the terms of this Section 2(a)(ii), the staff of the Commission refuses to alter its position, the Company shall provide (i) remove from the Holders Registration Statement such portion of the Registrable Securities (the “Cut Back Shares”) and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities as the staff of the Commission may require to assure the Company’s compliance with the requirements of Rule 415; provided, however, that the Company shall not agree to name any Investor as an “underwriter” in such Registration Statement without the prior written consent of such Investor (collectively, the “SEC Restrictions”). To eliminate any ambiguity, delay caused by a refusal by an Investor to be named as an underwriter shall be deemed to be part of a Rule 415 Response Effort. Notwithstanding any other provision of this Agreement to the contrary, no liquidated damages shall accrue pursuant to Section 2(c) during the period of any Rule 415 Response Effort or (ii) on or as to any Cut Back Shares until such time as the Company is able, using commercially reasonable opportunity efforts, to review cause such additional Registration Statement or Registration Statements to become effective with respect to the portions of Cut Back Shares in accordance with any SEC Restrictions (such date, the “Restriction Termination Date”). If the Company fails to cause any such Registration Statement or amendment or supplement thereto containing disclosure regarding to be declared effective within 90 days following the Holders prior to filingapplicable Restriction Termination Date, liquidated damages shall accrue on the same basis provided above.
(iiiii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders Purchaser of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iiiiv) Furnish to each Holder Purchaser that has Registrable Securities included in a Registration Statement such numbers of copies of a current prospectus conforming with the requirements of the Securities Act, copies of the such Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder Purchaser may reasonably require in order to facilitate the disposition of Registrable Securities owned by such HolderPurchaser.
(ivv) Register and qualify the securities covered by such Registration Statement under the securities or “blue skyBlue Sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(vvi) Notify promptly each Holder immediately Purchaser that has Registrable Securities included in a Registration Statement of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holderevent) of which the Company has knowledge as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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 existingexisting (each an “Event”), and use its reasonable best efforts to promptly update and/or correct such prospectus. Each Purchaser will hold in confidence and will not make any disclosure of any such Event and any related information disclosed by the Company.
(vivii) Notify each Holder immediately the Purchaser of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the any Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed and prepare and file any required filings with such principal any exchange or market where the Common Shares are traded.
(ix) Take all steps reasonably necessary to enable Purchaser to avail itself of the prospectus delivery mechanism set forth in Rule 153 (or exchangesuccessor thereto) under the Act.
(x) Take all steps reasonably necessary to keep public information available as those terms are understood and defined in Rule 144 under the Securities Act.
(b) In Notwithstanding the event the Registration Statement has become effective andobligations under Section 2(a)(vii) or any provision of this Agreement, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than if (i) 45 days in any 90-day period the good faith judgment of the Company, following consultation with legal counsel, it would be detrimental to the Company and its stockholderss for resales of Registrable Securities to be made pursuant to a Registration Statement due to the existence of a material development or potential material development involving the Company that the Company would be obligated to disclose in the Registration Statement, which disclosure would be premature or otherwise inadvisable at such time or would have a material adverse effect upon the Company and its stockholderss, or (ii) 90 days in any calendar yearthe good faith judgment of the Company, including without limitation by reason it would adversely affect or require premature disclosure of the filing of a Company-initiated registration of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result class of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 existingits equity securities, then the Company shall take such action as may be necessary will have the right to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such one period of time asnot more than 10 calendar days in any 12 month period, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of but only if the Company reasonably concludes, after consultation with outside legal counsel, that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company failure to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by as such would create a Holder holding any Registrable Securitiesmaterial liability or violation under applicable securities laws or regulations.
Appears in 2 contracts
Samples: Registration Rights Agreement (Clean Power Technologies Inc.), Registration Rights Agreement (Clean Power Technologies Inc.)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file file, not later than thirty (30) days after the Closing Date, a registration statement on Form S-3 or another available form (the "Registration Statement") with the SEC under the Securities Act to register the resale of the Conversion Shares by the Purchasers and thereafter shall use its best efforts to secure effectiveness of the Registration Statement within ninety (90) days after the Closing Date. In the event the Company fails to secure effectiveness of the Registration Statement within ninety (90) days after the Closing Date, the dividend rate on the Series A Preferred shall be increased to 15% per annum for the period the Registration Statement remains ineffective, and at such amendments time as the Registration Statement becomes effective, the dividend rate on the Series A Preferred shall revert to 12% per annum. In order to have shares included in the Registration Statement, each Purchaser must complete and deliver to the Company not later than ten (including post-effective amendments10) and supplements to days after the Closing, a Registration Statement and Questionnaire in the prospectus used in connection with such form attached hereto as Exhibit D.
(b) The Company shall pay all Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period Expenses (as defined below)) in connection with any registration, andqualification or compliance hereunder, during such period, comply with the provisions and each Purchaser shall pay all of the Securities Act with respect its respective Selling Expenses (as defined below) and other expenses that are not Registration Expenses relating to the disposition of all Registrable Securities of the Company covered Shares resold by such Purchaser. "Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-KExpenses" shall mean all expenses, Form 10-Q or Form 8-K or any analogous report under the 1934 Actexcept for Selling Expenses, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing incurred by the Company that in complying with the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the registration provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securitiesherein described, including, without limitation, information with respect all registration, qualification and filing fees, printing expenses, fees and disbursements of counsel and accountants for the Company, blue sky fees and expenses and the expense of any special audits incidents to or required by any such registration. "Selling Expenses" shall mean all selling commissions, underwriting fees and stock transfer taxes applicable to the number Conversion Shares and all fees and disbursements of Registrable Securities being offered or sold, the purchase price being paid therefor and counsel for any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable SecuritiesPurchaser.
Appears in 2 contracts
Samples: Series a Convertible Preferred Stock Purchase Agreement (Maxim Pharmaceuticals Inc), Series a Convertible Preferred Stock Purchase Agreement (Maxim Pharmaceuticals Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):possible:
(i) But in any event within 30 60 days of the filing of the Company’s 2004 10-KClosing, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 120 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K Closing (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Daysdays on which there is trading on the Principal Market or such other market or exchange on which the Common Stock is then principally traded) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h3(g)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 2 contracts
Samples: Securities Purchase and Registration Rights Agreement (Star Scientific Inc), Securities Purchase and Registration Rights Agreement (Star Scientific Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):possible:
(i) But in any event within 30 60 days of the filing of the Company’s 2004 10-KClosing, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities Warrant Shares issuable upon full exercise of the Warrant (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 120 days (or, if the SEC Commission elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K Closing.
(the “Effectiveness Deadline”). ii) Without limiting the foregoing, the Company will promptly respond to all SEC Commission comments, inquiries and requests, and shall request acceleration of effectiveness of the Registration Statement at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(iiiii) Prepare and file with the SEC Commission such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iiiiv) Furnish or otherwise make available to each Holder such numbers of copies of a current prospectus included in the Registration Statement conforming with the requirements of the Securities Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(ivv) Register and qualify the securities covered by such the Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(vvi) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vivii) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(viiviii) Permit Upon request, permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Daysdays on which there is trading on the Principal Market or such other market or exchange on which the Common Stock is then principally traded) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel, provided, however, that the Company shall not be obligated to comply with this Section 5.2(a)(viii) if compliance would cause the Company to fail to comply with any other provisions hereunder.
(viiiix) List If required by the Registrable Securities covered by such Registration Statement on Principal Market or the principal securities exchange and/or market on which the Common Stock is then listed listed, qualify the Registrable Securities covered by such Registration Statement for listing on the Principal Market or the principal securities exchange and/or market on which the Common Stock is then listed, including the preparation and prepare and file filing of any required filings with such principal market or exchange.
(b) In the event that the Registration Statement has become been declared effective by the Commission and, afterwards, any Holder’s ability to sell Registrable Securities registered for resale under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such the Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such the Registration Statement or the prospectus (including any supplements thereto) included in the Registration Statement, such that such the Registration Statement or the prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend any Holder intends to distribute the Registrable Securities by means of an underwriting, the Holder(s) such Holder shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Subject to Section 5.2(c) above, the Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a the Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any the Registration Statement, all documents filed with the SEC Commission subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such the Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (iif)(ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC Commission such amendments (including post-effective amendments) and supplements to a the Registration Statement and the prospectus used in connection with such the Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such the Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such the Registration Statement. In the case of amendments and supplements to a the Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h5.2(g)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Exchange Act, the Company shall have incorporated such report by reference into such the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC Commission on the same day on which the 1934 Exchange Act report is filed which created the requirement for the Company to amend or supplement such the Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v5.2(a)(vi) or 5.2(a)(vi5.2(a)(vii), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus prospectus and/or amended amendment to the Registration Statement contemplated by this Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus prospectus or the Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; , (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; , and (iii) as soon as practicable, supplement or make amendments to any the Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 2 contracts
Samples: Securities Purchase and Registration Rights Agreement (Star Scientific Inc), Securities Purchase and Registration Rights Agreement (Star Scientific Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, As soon as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report reasonably practicable and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within no later than 30 days of after the filing of the Company’s 2004 10-KClosing, Celtrix shall prepare and file a registration statement ("Registration Statement") with the Commission pursuant to Rule 415 SEC under the Securities Act on Form S-3 under to register the Securities Act (or in resale of the Shares and the Warrant Shares ( "Registrable Securities") and thereafter shall use its best efforts to secure the effectiveness of such registration statement, such effectiveness to be declared no later than 90 days after the Closing. In the event that Celtrix fails to file the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such within 30 days after the Closing or the SEC does not declare the Registration Statement and effective within 90 days after the prospectus used in connection with such Registration Statement Closing, then Celtrix will pay to the Purchasers by wire transfer or certified check or cashier's check sent to the Purchasers' designated account or representative, as the case may be necessary be, an amount equal to comply with the provisions 2% of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to aggregate Purchase Price hereunder for each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided month that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of is delayed. Such amount, however, shall be pro-rated for any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review month in which the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchangedeclared effective.
(b) In the event the Celtrix shall pay all Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period Expenses (as defined below)) in connection with any registration, andqualification or compliance hereunder, during such period, comply with the provisions and each holder of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such ("Holder") shall pay all Selling Expenses (as defined below) and other expenses that are not Registration Statement. In the case of amendments and supplements Expenses relating to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until resold by such Holder’s receipt of . "Registration Expenses" shall mean all expenses, except for Selling Expenses, incurred by Celtrix in complying with the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the registration provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securitiesherein described, including, without limitation, information with respect all registration, qualification and filing fees, printing expenses, escrow fees, fees and disbursements of counsel for Celtrix, blue sky fees and expenses and the expense of any special audits incident to the number of Registrable Securities being offered or soldrequired by any such registration. "Selling Expenses" shall mean all selling commissions, the purchase price being paid therefor underwriting fees and any other terms of the offering of stock transfer taxes applicable to the Registrable Securities to be sold in such offering; (ii) as soon as practicable make and all required filings fees and disbursements of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to counsel for any Registration Statement if reasonably requested by a Holder holding any Registrable SecuritiesHolder.
Appears in 2 contracts
Samples: Common Stock and Warrant Purchase Agreement (Celtrix Pharmaceuticals Inc), Common Stock and Warrant Purchase Agreement (Celtrix Pharmaceuticals Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after possible, but in any event within sixty (60) days, if and upon the filing written request of the Report Purchaser at any time on Form 10-K for the year ended December 31or before May 26, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):2017:
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare Prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after as soon as Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”), which Registration Statement, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such number of additional shares of Common Stock as may become issuable pursuant to the anti-dilution provisions of the Notes or Warrants. The number of shares of Common Stock initially included in such Registration Statement shall be no less than the product of 1.2 times the sum of (A) the Shares and (B) the Warrant Shares number of shares of Common Stock that are issuable upon full exercise of the Warrants as of the date of this Agreement at the then applicable Exercise Price (as defined in the Warrant) plus the number of shares of Common Stock that would be issuable pursuant to the conversion of the Notes (assuming that the Notes were to become convertible on the date before which the Registration Statement is filed). Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days no later than the following date, as appropriate (or, the “Required Effective Date”): (A) if the SEC elects to notifies the Company that the SEC will not review the Registration Statement, 180 daysthe Required Effective Date shall be five (5) following days after the filing of SEC provides such notification, or (B) if the Company’s 2004 10-K SEC notifies the Company that it will review the Registration Statement, then the Required Effective Date shall be sixty (60) days after the “Effectiveness Deadline”)Company receives the first written comments on the Registration Statement from the SEC. Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder that has Registrable Securities included in the Registration Statement such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue skyBlue Sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify promptly each Holder immediately that has Registrable Securities included in the Registration Statement of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holderevent) of which the Company has knowledge as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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 existingexisting (each an “Event”), and use its reasonable best efforts to promptly update and/or correct such prospectus. Each Holder will hold in confidence and will not make any disclosure of any such Event and any related information disclosed by the Company.
(vi) Notify each Holder immediately of the issuance by the Commission SEC or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed and prepare and file any required filings with such principal the Nasdaq Stock Market or any other exchange or market where the shares of Common Stock are traded.
(viii) Take all steps reasonably necessary to enable Holders to avail themselves of the prospectus delivery mechanism set forth in Rule 153 (or exchangesuccessor thereto) under the Act.
(b) In Notwithstanding the event obligations under Section 2(a)(v) or any provision of this Agreement, if (i) in the good faith judgment of the Company, following consultation with legal counsel, it would be detrimental to the Company and its stockholders for resales of Registrable Securities to be made pursuant to the Registration Statement has become effective and, afterwards, any Holder’s ability due to sell Registrable Securities under the existence of a material development or potential material development involving the Company that the Company would be obligated to disclose in the Registration Statement is suspended for more than (i) 45 days in any 90-day period Statement, which disclosure would be premature or otherwise inadvisable at such time or would have a material adverse effect upon the Company and its stockholders, or (ii) 90 days in any calendar yearthe good faith judgment of the Company, including without limitation by reason it would adversely affect or require premature disclosure of the filing of a Company-initiated registration of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result class of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 existingits equity securities, then the Company shall take such action as may be necessary will have the right to amend or supplement such suspend the use of the Registration Statement or prospectus such for a period of not more than 30 consecutive calendar days, but only if the Company reasonably concludes, after consultation with outside legal counsel, that such the failure to suspend the use of the Registration Statement or prospectus, as so amended, shall not contain an untrue statement such would create a risk of a material fact liability or omit to state a material fact required to be stated therein violation under applicable securities laws or necessary to make the statements not misleadingregulations.
(c) If During the Holder(s) intend to distribute the Registrable Securities by means of an underwritingregistration period, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisionswill make available, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available upon reasonable advance notice during normal business hours, for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition Holder whose Registrable Securities are being sold pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all pertinent financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closingrecords, pertinent corporate documents and properties of the CompanyCompany (collectively, and the “Records”) as reasonably necessary to enable each such Holder to exercise its due diligence responsibility in connection with or related to the contemplated offering. The Company will cause the Company’s its officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would may reasonably be expected to be in conflict with any business request for purposes of the Company or its Subsidiariesperforming such due diligence.
(fd) The Company may suspend the Each Holder will hold in confidence, use of any prospectus used only in connection with the Registration Statement only contemplated offering and not make any disclosure of all Records and other information that the Company determines in the eventgood faith to be confidential, and for such period of time aswhich determination the Holders are so notified, unless (i) the disclosure of such Records is necessary to avoid or correct a suspension is required by the rules and regulations of the Commission misstatement or omission in any Registration Statement, (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court or government body of competent jurisdiction, (iii) the information in such Records has been made generally available to the public other than by disclosure in violation of this or any other agreement (to the knowledge of the relevant Holder), (iv) the Records or other information was developed independently by the Holder without breach of this Agreement, (v) the information was known to the Holder before receipt of such information from the Company, or (vi) the information was disclosed to the Holder by a third party not under an obligation of confidentiality. However, a Holder may make disclosure of such Records and other information to any attorney, adviser, or other third party retained by it is that needs to know the information as determined in good faith by the Board of Directors Holder (the “Holder Representative”), if the Holder advises the Holder Representative of the confidentiality provisions of this Section 2(e), but the Holder will be liable for any act or omission of any of its Holder Representatives relative to such information as if the act or omission was that of the Holder. The Company is not required to disclose any confidential information in the Records to any Holder unless and until such Holder has entered into a confidentiality agreement (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially to the effect of this Section 2(e). Unless legally prohibited from so doing, each Holder will, upon learning that because disclosure of valid business reasons (not including Records containing confidential information is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the avoidance of Company and allow the Company, at the Company’s obligations hereunder)expense, it to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidential. Nothing herein will be deemed to limit the Holder’s ability to sell Registrable Securities in a manner that is otherwise consistent with applicable laws and regulations.
(e) The Company shall file a Registration Statement with respect to any newly authorized and/or reserved Registrable Securities consisting of Conversion Shares and Warrant Shares described in the best interests clause (i) of the Company to suspend such use, definition of Registrable Securities within ten (10) business days of any stockholders’ meeting authorizing same and prior to suspending such shall use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable its best efforts to cause such suspension Registration Statement to terminate at become effective within ninety (90) days of such stockholders’ meeting. If the earliest possible date.
Holders become entitled, pursuant to an event described in clause (g) The Company shall prepare and file with the SEC such amendments (including post-effective amendmentsii) and supplements (iii) of the definition of Registrable Securities, to receive any securities in respect of Registrable Securities that were already included in a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is subsequent to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep date such Registration Statement effective at all times during is declared effective, and the Registration Period (as defined below), and, during Company is unable under the securities laws to add such period, comply with the provisions of the Securities Act with respect securities to the disposition of all Registrable Securities of the Company covered by such then effective Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated promptly file, in accordance with the procedures set forth herein, an additional Registration Statement with respect to such report by reference into newly Registrable Securities. The Company shall use its best efforts to (i) cause any such additional Registration Statement, if applicablewhen filed, or shall to become effective within 30 days of that date that the need to file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt arose. All of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of registration rights and remedies under this paragraph.
(i) If requested by a Holder, the Company Agreement shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating apply to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings registration of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in newly reserved shares and such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any new Registrable Securities.
Appears in 2 contracts
Samples: Registration Rights Agreement (AMERI Holdings, Inc.), Securities Purchase Agreement (Lone Star Value Management LLC)
Registration Requirements. The Company shall use its commercially reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holderany Purchaser. Such commercially reasonable best efforts by the Company shall include, without limitation, include the following:
(a) The Company shall, will as expeditiously as possible after possible, and in no event later than June 29, 2001 (the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K"Filing Deadline"), prepare and file with the Commission a registration statement with (the Commission pursuant to Rule 415 under the Securities Act "Registration Statement") on Form S-3 under (if use of such form is then available to the Company pursuant to the rules of the Commission and, if not, on such other form promulgated by the Commission for which the Company then qualifies and that counsel for the Company shall deem appropriate and which form shall be available for the resale of the Registrable Securities Act to be registered thereunder in accordance with the provisions of this Agreement and in accordance with the intended method of distribution of such Registrable Securities), and use its commercially reasonable efforts to cause such filed Registration Statement to become effective by the Effectiveness Deadline. The "Effectiveness Deadline" shall mean, as applicable, (or i) in the event such Registration Statement is not subject to review by the Commission, five (5) business days after the date that the Company is ineligible to use such formfirst advised by the Commission, such other form as the Company is eligible to use under the Securities Act provided whether orally or in writing, that such other form shall Registration Statement will not be converted into an S-3 promptly after Form S-3 becomes available subject to the Company) covering resales review by the Holders as selling stockholders Commission and (not underwritersii) of in the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in event such Registration Statement shall be no less than subject to review by the sum Commission, the earlier of one hundred and twenty (A120) days from the Shares and date of this Agreement or five (B5) business days after the Warrant Shares issuable upon full exercise of the Warrant. Thereafter date that the Company shall use is first advised by the Commission, whether orally or in writing, that it has no further comments in connection with its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days (or, if the SEC elects to review of the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare will as expeditiously as possible prepare and file with the SEC Commission such amendments and supplements to such the Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such the Registration Statement effective at all times during for a period of not less than: (i) in the case of a non-underwritten offering of Registrable Securities, until there shall no longer be any Registrable Securities or (ii) with respect to an underwritten offering of Registrable Securities, ninety (90) days after the commencement of the distribution of Registrable Securities covered by the Registration Period Statement (as defined belowbut not before the expiration of the period referred to in Section 4(3) of the Securities Act and Rule 174 thereunder, if applicable), and, during such period, and the Company will comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company securities covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated during such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements period in accordance with the SEC on intended methods of disposition by a Purchaser as set forth in the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 2 contracts
Samples: Registration Rights Agreement (Viacom Inc), Registration Rights Agreement (Hollywood Media Corp)
Registration Requirements. (a) The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement with the Commission pursuant to Rule 415 SEC under the Securities Act on Form S-3 under to register the Securities Act resale of the Shares by the Purchasers (the "Registration Statement") no later than ten (10) days after the date hereof.
(b) The Company shall pay all Registration Expenses (as defined below) in connection with any registration, qualification or in compliance hereunder, and each Purchaser shall pay all Selling Expenses (as defined below) and other expenses that are not Registration Expenses relating to the event that Shares resold by such Purchaser. Registration Expenses shall mean all expenses, except for Selling Expenses, incurred by the Company is ineligible to use such formin complying with the registration provisions herein described, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to including, without limitation, all registration, qualification and filing fees, printing expenses, escrow fees, fees and disbursements of counsel for the Company) covering resales , blue sky fees and expenses, and the expense of any special audits incident to or required by the Holders as any such registration. Selling Expenses shall mean all selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) commissions, underwriting fees and stock transfer taxes applicable to the Shares and all fees and disbursements of counsel for any Purchaser.
(Bc) In the Warrant Shares issuable upon full exercise case of the Warrant. Thereafter registration effected by the Company shall pursuant to these registration provisions, the Company will use its reasonable best efforts to to: (i) cause such the Registration Statement and other filings to be declared become effective as soon as possible, and in any event prior to 90 within sixty (60) days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoingdate hereof, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare keep such registration effective until the earlier of (a) the second anniversary of the Closing Date, (b) such date as all of the Shares have been resold by the original Purchasers thereof, or (c) such time as all of the Shares held by the Purchasers can be sold within a given three-month period without compliance with the registration requirements of the Securities Act pursuant to Rule 144 under the Securities Act; (iii) prepare and file with the SEC such amendments and supplements to such the Registration Statement and the prospectus used in connection with such the Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities securities covered by the Registration Statement; (iv) furnish such number of prospectuses and other documents incident thereto, including any amendment of or supplement to the prospectus, as a Purchaser from time to time may reasonably request; (v) cause all Shares registered as described herein to be listed on each securities exchange and quoted on each quotation service on which similar securities issued by the Company are then listed or quoted; (vi) provide a transfer agent and registrar for all Shares registered pursuant to the Registration Statement and a CUSIP number for all such Shares; (vii) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC; and (viii) file the documents required of the Company covered and otherwise use its best efforts to maintain requisite blue sky clearance in (A) all jurisdictions in which any of the Shares are originally sold and (B) all other states reasonably specified in writing by a Purchaser, provided as to clause (B), however, that in no event shall the Company be required to qualify to do business or consent to service of process in any state in which it is not now so qualified or has not so consented.
(d) The Company shall furnish to each Purchaser upon request a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary in order to facilitate the public sale or other disposition of all or any of the Shares held by such Registration Statement. In Purchaser.
(e) With a view to making available to the case Purchasers the benefits of amendments Rule 144 promulgated under the Securities Act ("Rule 144") and supplements any other rule or regulation of the SEC that may at any time permit a Purchaser to sell Shares to the public without registration or pursuant to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report registration on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 ActS-3, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder covenants and agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
to: (i) If requested by a Holdermake and keep public information available, as those terms are understood and defined in Rule 144 under the Company shall Securities Act, until the earlier of (iA) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms second anniversary of the offering Closing Date or (B) such date as all of the Registrable Securities to be sold in such offeringShares shall have been resold by the original Purchasers thereof; (ii) as soon as practicable make file with the SEC in a timely manner all reports and other documents required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendmentCompany under the Securities Act and the Exchange Act; and (iii) as soon as practicable, supplement or make amendments furnish to any Registration Statement if reasonably requested Purchaser upon request, as long as the Purchaser owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a Holder holding any Registrable Securities.copy of the most recent annual or quarterly report of the Company, and
Appears in 2 contracts
Samples: Common Stock Purchase Agreement (Enzon Inc), Common Stock Purchase Agreement (Enzon Inc)
Registration Requirements. The Company shall use its commercially reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the HolderInvestors, provided that in no event shall the Company be required to register the resale of the Investor Shares in an underwritten offering. Such commercially reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shallshall use commercially reasonable efforts to, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):possible:
(i) But in any event within 30 days of prepare and promptly following the filing of Registration Statement on Form S-4 by the Company’s 2004 10-KCompany (in no event later than August 7, prepare and 2015), file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders Investors as selling stockholders (not underwriters) of the Registrable Securities Investor Shares (the “Investor Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its commercially reasonable best efforts to cause such Investor Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days possible following its filing.
(or, if the SEC elects to review the Registration Statement, 180 daysii) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC Commission comments, inquiries and requests, and shall request acceleration of effectiveness of the Investor Registration Statement at the earliest possible date. The Company shall provide the Holders Investors reasonable opportunity to review the portions of any such Investor Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders Investors prior to filing.
(iiiii) Prepare prepare and file with the SEC Commission such amendments and supplements to such Investor Registration Statement and the prospectus Investor Prospectus used in connection with such Investor Registration Statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Investor Registration Statement and notify the Holders Investors of the filing and effectiveness of such Investor Registration Statement and any amendments or supplements.
(iiiiv) Furnish furnish or otherwise make available to each Holder such numbers of Investor copies of a current prospectus included in the Investor Registration Statement conforming with the requirements of the Securities Act, copies of the Investor Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder Investor may reasonably require in order to facilitate the disposition of Registrable Securities owned by such HolderInvestor.
(ivv) Register register and qualify the securities covered by such the Investor Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(vvi) Notify notify each Holder immediately Co- Investor of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holderevents) as a result of which the prospectus Investor Prospectus (including any supplements thereto or thereof) included in such Investor Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and use its commercially reasonable best efforts to promptly update and/or correct such prospectus.
(vivii) Notify notify each Holder immediately Investor of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Investor Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its commercially reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List if required by the Registrable Securities covered by such Registration Statement on NASDAQ or the principal securities exchange and/or market on which the Common Stock Company ordinary shares is then listed listed, qualify the Registrable Securities covered by such Investor Registration Statement for listing on the NASDAQ or the principal securities exchange and/or market on which the Company ordinary shares are then listed, including the preparation and prepare and file filing of any required filings with such principal market or exchange.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus Investor Prospectus used in connection with the Investor Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or any self-regulatory organization, or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (iib) the Company provides the Holders Investors with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use commercially reasonable best efforts to cause such suspension to terminate at the earliest possible date. Notwithstanding the foregoing, the use of any Investor Prospectus may be suspended by reason of clause (ii) of this subsection (b) for a period of time not to exceed (A) sixty consecutive days for any one such suspension or (B) an aggregate of ninety days during the Investor Registration Period.
(gc) The Company shall prepare and file with the SEC Commission such amendments (including post-effective amendments) and supplements to a the Investor Registration Statement and the prospectus Investor Prospectus used in connection with such the Investor Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such the Investor Registration Statement effective at all times during the Investor Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such the Investor Registration Statement. In the case of amendments and supplements to a the Investor Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h1.2(c)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Exchange Act, the Company shall have incorporated such report by reference into such the Investor Registration Statement, if applicable, or shall file such amendments or supplements with the SEC Commission on the same day on which the 1934 Exchange Act report is filed which created the requirement for the Company to amend or supplement such the Investor Registration Statement.
(hd) Each Holder Investor agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v1.2(a)(vi) or 5.2(a)(vi1.2(a)(vii), and upon notice of any suspension under Section 5.2(f1.2(b), such Holder Investor will forthwith discontinue disposition of such Registrable Securities under the Investor Registration Statement until such HolderInvestor’s receipt of the copies of the supplemented Prospectus prospectus and/or amended amendment to the Investor Registration Statement contemplated by this Section 5.21.2, or until it is advised in writing by the Company that the use of the applicable Prospectus prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus prospectus or the Investor Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(ie) If requested by a Holderan Investor, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder an Investor reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price Subscription Price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; , (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; , and (iii) as soon as practicable, supplement or make amendments to any the Investor Registration Statement if reasonably requested by a Holder an Investor holding any Registrable Securities.
Appears in 2 contracts
Samples: Share Subscription Agreement (Tribute Pharmaceuticals Canada Inc.), Share Subscription Agreement (Pozen Inc /Nc)
Registration Requirements. (a) The Company shall use its reasonable best efforts to effect prepare and file the registration of Registration Statement with the SEC under the Securities Act to register the resale of the Registrable Securities Shares by the Purchasers no later than 30 days after the Closing Date.
(b) The Company shall pay all Registration Expenses (as defined below) in connection with any registration, qualification or compliance hereunder, and each Purchaser shall pay all Selling Expenses (as defined below) and other expenses that are not Registration Expenses relating to the Shares resold by such Purchaser. Registration Expenses shall mean all expenses, except for Selling Expenses, incurred by the Company in complying with the registration provisions herein described, including, without limitation, all registration, qualification and filing fees, printing expenses, escrow fees, fees and disbursements of counsel for the execution of an undertaking to file post-effective amendmentsCompany, appropriate qualification under applicable blue sky fees and expenses, and the expense of any special audits incident to or other state securities laws required by any such registration. Selling Expenses shall mean all selling commissions, underwriting fees and appropriate compliance with stock transfer taxes applicable regulations issued under to the Securities ActPurchased Shares and the shares of Common Stock issuable upon exercise of the Additional Investment Right and all fees and disbursements of counsel for any Purchaser.
(c) as would permit or facilitate In the resale case of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested registration effected by the Holder. Such Company pursuant to these registration provisions, the Company will use its reasonable best efforts by to: (i) cause the Company shall include, without limitation, the following:
(a) The Company shall, Registration Statement to become effective as expeditiously soon as possible practicable after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But thereof but in any event within 30 90 days of after the filing of Registration Statement is filed by the Company’s 2004 10-K, prepare and file a registration statement with subject to receipt of necessary information from the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that Purchasers after prompt request from the Company is ineligible to use the Purchasers to provide such form, information; (ii) keep such other form registration effective until the earlier (such date being referred to as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company"Registration Termination Date") covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the later of (1) the second anniversary of the Closing Date and (2) the last date on which Shares and are issued upon exercise of an Additional Investment Right, or (B) the Warrant Shares issuable upon full exercise such date as all of the Warrant. Thereafter Shares have been resold by the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days original Purchasers thereof; (or, if the SEC elects to review the Registration Statement, 180 daysiii) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare prepare and file with the SEC such amendments and supplements to such the Registration Statement and the prospectus used in connection with such the Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities securities covered by the Registration Statement; (iv) furnish such number of prospectuses and other documents incident thereto, including any amendment of or supplement to the prospectus, as a Purchaser from time to time may reasonably request; (v) cause all Shares registered as described herein to be listed on each securities exchange and quoted on each quotation service on which similar securities issued by the Company are then listed or quoted; (vi) provide a transfer agent and registrar for all Shares registered pursuant to the Registration Statement and a CUSIP number for all such Shares; (vii) to comply with all applicable rules and regulations of the SEC; and (viii) file the documents required of the Company covered and maintain requisite blue sky clearance in (A) all jurisdictions in which any of the Shares are originally sold and (B) all other states reasonably specified in writing by such Registration Statement. In a Purchaser, provided, however, that the case of amendments and supplements to a Registration Statement which are Company shall not be required to be filed pursuant qualify to this Agreement (including pursuant do business or consent to this Section 3(h)) by reason service of process in any state in which it is not now so qualified or has not so consented. After the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 ActRegistration Termination Date, the Company shall be entitled to withdraw the Registration Statement and the Purchasers shall have incorporated such report by reference into such Registration Statement, if applicable, no further right to offer or shall file such amendments or supplements with sell any of the SEC on Shares pursuant to the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(hd) Each Holder agrees by its acquisition With a view to making available to the Purchasers the benefits of Rule 144 promulgated under the Securities Act ("Rule 144") and any other rule or regulation of the Registrable Securities thatSEC that may at any time permit a Purchaser to sell Shares to the public without registration or pursuant to a registration on Form S-3, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), covenants and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
agrees to: (i) If requested by a Holdermake and keep public information available, as those terms are understood and defined in Rule 144, until the Company shall earlier of (iA) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms second anniversary of the offering date hereof or (B) such date as all of the Registrable Securities to be sold in such offeringShares shall have been resold; (ii) as soon as practicable make file with the SEC in a timely manner all reports and other documents required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendmentCompany under the Securities Act and the Exchange Act; and (iii) as soon as practicable, supplement or make amendments furnish to any Purchaser upon request, as long as the Purchaser owns any Shares, (A) a written statement by the Company that it is in compliance with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the most recent annual or quarterly report of the Company, and (C) such other information as may be reasonably requested in order to avail any Purchaser of any rule or regulation of the SEC that permits the selling of any such Shares without registration or pursuant to such Form S-3.
(e) Notwithstanding anything in this Agreement to the contrary, if the Company shall furnish to the selling Purchasers a certificate signed by the Chief Executive Officer or the Chief Financial Officer of the Company stating that the Board of Directors of the Company has made the good faith and reasonable determination (i) that continued use by the selling Purchasers of the Registration Statement if reasonably requested for purposes of effecting offers or sales of Shares pursuant thereto would require, under the Securities Act, premature disclosure in the Registration Statement (or the prospectus relating thereto) of material, nonpublic information concerning the Company, its business or prospects or any proposed material transaction involving the Company, (ii) that such premature disclosure would be materially adverse to the Company, its business or prospects or any such proposed material transaction or would make the successful consummation by a Holder holding the Company of any Registrable Securitiessuch material transaction significantly less likely and (iii) that is therefore desirable to suspend the use by the Purchasers of such Registration Statement (and the prospectus relating thereto) for purposes of effecting offers or sales of Shares pursuant thereto, then the right of the selling Purchasers to use the Registration Statement (and the prospectus relating thereto) for purposes of effecting offers or sales of Shares pursuant thereto shall be suspended. Notwithstanding the foregoing, the Company shall not under any circumstances be entitled to exercise its right to suspend the use of the Registration Statement more than on more than three occasions during any 12-month period or for more than 30 days per such occasion. Each Purchaser hereby covenants and agrees that it will not sell any Shares pursuant to the Registration Statement during the periods the Registration Statement is withdrawn or the ability to sell thereunder is suspended as set forth in this Section 7.1(e).
Appears in 2 contracts
Samples: Securities Purchase Agreement (Penwest Pharmaceuticals Co), Securities Purchase Agreement (Penwest Pharmaceuticals Co)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after no later than the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):Filing Date:
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare Prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is then eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “"Registration Statement”"), which Registration Statement, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of the Preferred Shares and Additional Preferred Shares and exercise of the Warrants. The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) two times the number of Common Shares that are then issuable upon conversion of the Preferred Shares and (B) the Warrant Additional Preferred Shares issuable upon full and exercise of the Warrants (assuming full conversion or exercise, respectively, at the then applicable Conversion Price (as defined in the Certificate) or Exercise Price (as defined in the Warrant) plus such number of shares of Common Stock other than the Registrable Securities as the Company may in its sole discretion include in such registration statement. Nothing in the preceding sentence will limit the Company's obligations to reserve shares of Common Stock pursuant to Section 3.7 of the Purchase Agreement. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”)Filing Date. Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders upon request reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” "Blue Sky" laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) 3 full Trading DaysDays (as defined in the Certificate)) prior to each filing filing, and shall not file any document in a form to which such counsel reasonably objects and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed and prepare and file any required filings with such principal the Nasdaq National Market or any exchange or market where the Common Shares are traded.
(ix) Take all steps necessary to enable Holders to avail themselves of the prospectus delivery mechanism set forth in Rule 153 (or exchangesuccessor thereto) under the Act (if applicable).
(b) In Set forth below in this Section 2(b) are (I) events that may arise that the event Investors consider will interfere with the Registration Statement has become effective andfull enjoyment of their rights under this Agreement, afterwardsthe Purchase Agreement, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than Warrants and the Certificate (the "Interfering Events"), and (II) certain remedies applicable in each of these events. Paragraphs (i) 45 days in any 90-day period or through (iiiv) 90 days in any calendar yearof this Section 2(b) describe the Interfering Events, including without limitation by reason of any suspension or stop order with respect provide a remedy to the Registration Statement or Investors if an Interfering Event occurs and provide that the fact Investors may require that an event has occurred the Company repurchase outstanding Preferred Shares and Warrants at a specified price if certain Interfering Events are not timely cured. Paragraph (v) provides, inter alia, that if default adjustments required as a result the remedy in the case of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 certain of the circumstances then existingInterfering Events are not provided when due, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules Investors to redeem outstanding Preferred Shares and regulations of Warrants at a specified price. Paragraph (vi) provides, inter alia, that the Commission or (ii) it is determined in good faith by Investors have the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company right to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspensionspecific performance. The Company will use reasonable best efforts preceding paragraphs in this Section 2(b) are meant to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, serve only as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant an introduction to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi2(b), are for convenience only, and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed not to be incorporated by reference considered in such Prospectus applying, construing or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of interpreting this paragraphSection 2(b).
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 2 contracts
Samples: Registration Rights Agreement (Stemcells Inc), Registration Rights Agreement (Stemcells Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, including without limitation, limitation the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable "blue sky sky" or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the HolderHolder and in all U.S. jurisdictions. Such reasonable best efforts by the Company shall include, without limitation, include the following:
(a) The Company shall, as expeditiously as reasonably possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):Closing Date:
(i) But in any event within 30 days of the filing of the Company’s 2004 10-Kthereafter, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 S-1 or Form S-3, as applicable, under the Securities Act (or in the event that the Company is ineligible to use either such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the CompanyAct) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (such registration statement, including any amendments or supplements thereto and prospectuses contained therein, is referred to herein as the “"Registration Statement”"), which Registration Statement, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such number of additional shares of Common Stock as may become issuable to prevent dilution resulting from stock splits, stock dividends or similar events. The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant2,142,197 shares. Thereafter Thereafter, the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possiblereasonably practicable, and in any event prior to 90 the earlier of (i) 120 calendar days following the Closing Date or (or, if ii) 5 Trading Days after SEC clearance to request acceleration (the SEC elects "Effectiveness Deadline"). The Company shall provide Holders and their legal counsel reasonable opportunity to review the any such Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”)Statement or amendment or supplement thereto prior to filing. Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The If the Company shall provide is not initially eligible to use Form S-3, it will, at the Holders reasonable opportunity request of a majority-in-interest of the holders of Registrable Securities, amend its Form S-1 to review the portions of any a Form S-3 at such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior time that it becomes eligible to filingdo so.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement Statement, or prepare and file such additional registration statements, as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement in accordance with the intended methods of disposition by the seller thereof as set forth in the Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish After the registration, furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register Use its best efforts to register and qualify the securities covered by such Registration Statement under the such other securities or “"blue sky” " laws of all domestic jurisdictions, to U.S. jurisdictions (except in any such jurisdiction where the extent requiredregistration and qualification of the securities covered by such Registration Statement is exempt under the laws and regulations of such jurisdiction); provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events event unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereofthereof and any information incorporated or deemed to be incorporated by reference therein) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and and, pursuant to Section 2(f), use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit a single firm of counsel, designated as Holders' counsel to by the Holders of a majority of the Registrable Securities included in the Registration Statement, to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing filing, and will shall not request acceleration of the Registration Statement without prior notice file any document in a form to which such counselcounsel reasonably objects.
(viii) List Use its best efforts to list the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed and/or quoted and prepare and file any required filings with such principal the National Association of Securities Dealers, Inc. or any exchange or market where the Common Stock is then traded.
(ix) If applicable, take all steps necessary to enable Holders to avail themselves of the prospectus delivery mechanism set forth in Rule 153 (or exchangesuccessor thereto) under the Act.
(b) In Set forth below in this Section 2(b) are (I) events that may arise that the event Investors consider will interfere with the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities full enjoyment of their rights under the Registration Statement is suspended for more than Purchase Agreement and this Agreement (the "Interfering Events"), and (II) certain remedies applicable in each of these events. Paragraphs (i) 45 days in any 90-day period or through (iiiv) 90 days in any calendar yearof this Section 2(b) describe the Interfering Events, including without limitation by reason of any suspension or stop order with respect provide a remedy to the Registration Statement or Investors if an Interfering Event occurs and provide that the fact Investors may require that an event has occurred the Company redeem outstanding Securities at a specified price if certain Interfering Events are not timely cured. Paragraph (v) provides, inter alia, that if payments required as a result the remedy in the case of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 certain of the circumstances then existingInterfering Events are not paid when due, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company Investors to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspensionredeem outstanding Securities at a specified price. The Company will use reasonable best efforts preceding paragraphs in this Section 2(b) are meant to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, serve only as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant an introduction to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi2(b), are for convenience only, and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed not to be incorporated by reference considered in such Prospectus applying, construing or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of interpreting this paragraphSection 2(b).
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 2 contracts
Samples: Registration Rights Agreement (Constellation 3d Inc), Registration Rights Agreement (Constellation 3d Inc)
Registration Requirements. The Company Borrower shall use its reasonable best business efforts to effect the registration of the resale of the Registrable Securities (including, including without limitation, limitation the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the holder thereof (each a "Holder"). Such reasonable best business efforts by the Company Borrower shall include, without limitation, include the following:
(a) The Company the Borrower shall, as expeditiously as reasonably possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):Closing Date:
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare Prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under such appropriate registration form of the Securities Act (or in the event that the Company is ineligible to use such form, such other form Commission as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales reasonably selected by the Holders as selling stockholders (not underwriters) of Borrower covering the Registrable Securities (the “hereinafter referred to as a "Registration Statement”)") within 45 days following the Closing Date. The number of shares of Common Stock initially included in Thereafter, the Borrower shall use its reasonable business efforts to cause such Registration Statement to be declared effective by the Commission within 90 days following the Closing Date. In the event that such Registration Statement is not declared effective within 90 days following the Closing Date, there shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warranta 30 day grace period. Thereafter the Company The Borrower shall use its reasonable best efforts to cause the Registration Statement to become effective during this 30 day grace period, if applicable. In the event that such Registration Statement and other filings to be has not been declared effective as soon as possiblewithin 120 days from the Closing Date, then the Borrower shall, until the Registration Statement is declared effective, pay in cash to the Lenders, and in any event prior each of them, an amount equal to 90 days 2% of the Loan then outstanding (orhereinafter referred to as the "Liquidated Damages") advanced by such Lender for each 30 day period, if or part thereof, beginning on the SEC elects 121st day following the Closing Date (hereinafter referred to review as the "Default Period") that the Registration StatementStatement has not been declared effective; provided, 180 days) following however, that the filing Default Period shall terminate and Liquidated Damages shall cease to accrue on the date upon which all such Registrable Securities may be immediately sold under Rule 144 in the reasonable opinion of counsel to the Company’s 2004 10-K Borrower (provided that the “Effectiveness Deadline”Borrower's transfer agent has accepted an instruction from the Borrower to such effect). Without limiting If any applicable Default Period is less than 30 days such cash payment shall be on a pro rata basis. Such cash payment shall be calculated by the foregoing, Borrower on the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration earlier of effectiveness at (i) the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions effective date of any such Registration Statement or amendment (ii) the last day of each Default Period, and a check in lawful money of the United States of America shall be sent within three business days of such calculation to each of the Lenders. Following the initial effective date of such Registration Statement, Liquidated Damages shall also be payable to each of the Lenders by the Borrower for periods (in excess of the time period in which the Borrower is required to file a Current Report on Form 8-K) during which the Registration Statement does not remain effective; provided, however, that such Liquidated Damages shall not be payable by the Borrower in the event that all such Registrable Securities may be immediately sold by the Lenders pursuant to Rule 144. Notwithstanding the foregoing, if the Default Period commences from the failure of the Borrower to cause to become effective the Registration Statement solely by reason of the failure of any Lender to provide such information as (i) the Borrower may reasonably request from such Lender to be included in the Registration Statement or supplement thereto containing disclosure regarding (ii) the Holders prior Commission or Nasdaq may request in connection with such Registration Statement, the Borrower shall not be required to filingpay such Liquidated Damages to such Lender during the period of delay attributable to such Lender's failure. The Borrower and the Lenders hereby acknowledge and agree that it may be difficult, if not impossible, to determine with any reasonable accuracy the actual damages arising from the failure to secure effectiveness of the Registration Statement by the time hereinbefore specified, or to maintain the Registration Statement thereafter, and that the amount of the Liquidated Damages is a reasonable estimate thereof, provided that payment thereof shall in no manner be construed as impairing the right of the Lenders, and each of them, to require specific performance of this Agreement.
(ii) Prepare and file with the SEC Commission such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement and notify each of the Holders Lenders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder of the Lenders such numbers number of copies of a current prospectus conforming with the requirements of the Securities Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder each of the Lenders may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holdereach of the Lenders.
(iv) Register Use its best efforts to register and qualify the securities covered by such Registration Statement under the such other securities or “blue sky” "Blue Sky" laws of all domestic jurisdictions, to such jurisdictions as shall be reasonably requested by each of the extent requiredLenders; provided that the Company Borrower shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder of the Lenders immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements supplement thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder of the Lenders immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company Borrower shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to a single firm of counsel, designated by the Holders Lenders, to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing filing, and will shall not request acceleration of the Registration Statement without prior notice file any document in a form to which such counselcounsel reasonably objects.
(viii) List Use its reasonable business efforts to list the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed listed, and prepare and file any required filings with such principal the National Association of Securities Dealers, Inc. or any exchange or market or exchangewhere the Common Stock is traded.
(ix) Otherwise use its reasonable business efforts to comply with all applicable rules and regulations of the Commission and make available to its security holders, as soon as reasonably practicable, earnings statements covering a period of twelve months beginning with three months after the effective date of the Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company Borrower shall make available for inspection by the Holders, Lenders and their representative(s) of all the Holders together), any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder the Lenders or underwriter, all financial and other records customary for purposes of the Holders’ Lender's due diligence examination of the Company Borrower and review of any Registration Statement, all documents SEC Documents filed with the SEC subsequent to the ClosingClosing Date, pertinent corporate documents and properties of the CompanyBorrower, and cause the Company’s Borrower's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 2 contracts
Samples: Loan Agreement (Hanseatic Corp), Loan Agreement (Systemone Technologies Inc)
Registration Requirements. (a) As promptly as practicable following the Closing Date, but in any event within a period of 90 days following the Closing Date, the Corporation shall prepare and file with the Securities and Exchange Commission a Registration Statement on Form S-3 for the purpose of registering the resale by the Subscriber (or the Subscriber's affiliates) of the Purchased Shares under the Securities Act.
(b) The Company Corporation shall use its reasonable best efforts to effect pay all Registration Expenses (as defined below) in connection with any registration, qualification or compliance hereunder. Registration Expenses shall mean all expenses incurred by the Corporation in complying with the registration of the resale of the Registrable Securities (provisions herein described, including, without limitation, all registration, qualification and filing fees, printing expenses, escrow fees, fees and disbursements of counsel for the execution of an undertaking to file post-effective amendmentsCorporation, appropriate qualification under applicable blue sky fees and expenses, and the expense of any special audits incident to or other state securities laws and appropriate required by any such registration.
(c) In the case of the registration effected by the Corporation pursuant to these registration provisions, the Corporation will use its best efforts to: (i) cause the Registration Statement to become effective within one hundred fifty (150) days of the Closing Date, (ii) keep such registration effective until the earlier of (a) the second anniversary of the Closing Date, (b) such date as all of the Purchased Shares have been resold by the Subscriber thereof, or (c) such time as all of the Purchased Shares held by the Subscriber can be sold within a given three-month period without compliance with applicable regulations issued the registration requirements of the Securities Act pursuant to Rule 144 under the Securities Act; (iii) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC Securities and Exchange Commission such amendments and supplements to such the Registration Statement and the prospectus used in connection with such the Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company securities covered by such the Registration Statement. In ; (iv) furnish such number of prospectuses and other documents incident thereto, including any amendment of or supplement to the case of amendments and supplements prospectus, as the Subscriber from time to a Registration Statement which are required time may reasonably request; (v) cause all Purchased Shares registered as described herein to be filed listed on each securities exchange and quoted on each quotation service on which similar securities issued by the Corporation are then listed or quoted; (vi) provide a transfer agent and registrar for all Purchased Shares registered pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until and a CUSIP number for all such Holder’s receipt Purchased Shares; (vii) otherwise use its best efforts to comply with all applicable rules and regulations of the copies Securities and Exchange Commission; and (viii) file the documents required of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised Corporation and otherwise use its best efforts to maintain requisite blue sky clearance in (A) all jurisdictions in which any of the Purchased Shares are originally sold and (B) all other states reasonably specified in writing by the Company Subscriber, provided as to clause (B), however, that in no event shall the use Corporation be required to qualify to do business or consent to service of the applicable Prospectus may be resumed, and, process in either case, any state in which it is not now so qualified or has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraphnot so consented.
(id) If requested The Corporation shall furnish to the Subscriber upon request a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary in order to facilitate the public sale or other disposition of all or any of the Purchased Shares held by the Subscriber.
(e) With a Holderview to making available to the Subscriber the benefits of Rule 144 promulgated under the Securities Act ("Rule 144") and any other rule or regulation of the Securities and Exchange Commission that may at any time permit the Subscriber to sell Purchased Shares to the public without registration or pursuant to a registration on Form S-3, the Company shall Corporation covenants and agrees to: (i) make and keep public information available, as soon as practicable incorporate those terms are understood and defined in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to Rule 144 under the sale and distribution Securities Act, until the earlier of Registrable Securities, including, without limitation, information with respect to (A) the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms second anniversary of the offering Closing Date or (B) such date as all of the Registrable Securities to be sold in such offeringPurchased Shares shall have been resold by the Subscriber thereof; (ii) as soon as practicable make file with the SEC in a timely manner all reports and other documents required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendmentCorporation under the Securities Act and the Exchange Act; and (iii) furnish to the Subscriber upon request, as soon long as practicablethe Subscriber owns any Purchased Shares, supplement (A) a written statement by the Corporation that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the most recent annual or make amendments to any Registration Statement if quarterly report of the Corporation, and (C) such other information as may be reasonably requested by a Holder holding in order to avail the Subscriber of any Registrable Securitiesrule or regulation of the SEC that permits the selling of any such Purchased Shares without registration or pursuant to such Form S-3.
Appears in 2 contracts
Samples: Subscription Agreement (Ramsay Health Care Inc), Subscription Agreement (Ramsay Health Care Inc)
Registration Requirements. (a) The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities file, within forty-five (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act45) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible days after the filing of the Report on Form 10-K for the year ended December 31Closing Date, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 (or such other form as may be appropriate) with the SEC under the Securities Act (or in the event that "Registration Statement") to register the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) resale of the Registrable Securities Conversion Shares (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoingcollectively, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose"Registerable Securities"). The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review cause the Registration Statement and to be declared effective by the SEC within 105 days of the Closing Date. The number of shares designated in the Registration Statement or any amendment thereto, to be registered, shall be two hundred percent (200%) of the number of Securities that would be required if all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each the Registrable Securities were issued on the day before the filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Statement, plus 100,000 shares of Common Stock is then listed and prepare and file any required filings with such principal market or exchangeStock.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take pay all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period Expenses (as defined below)) in connection with any registration, andqualification or compliance hereunder, during such period, comply with the provisions of the Securities Act with respect and each Purchaser shall pay all Selling Expenses (as defined below) and other expenses that are not Registration Expenses relating to the disposition of all Registrable Registerable Securities of the Company covered resold by such Purchaser. "Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-KExpenses" shall mean all expenses, Form 10-Q or Form 8-K or any analogous report under the 1934 Actexcept for Selling Expenses, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing incurred by the Company that in complying with the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the registration provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securitiesherein described, including, without limitation, information with respect all registration, qualification and filing fees, printing expenses, escrow fees, fees and disbursements of counsel for the Company, blue sky fees and expenses and the expense of any special audits incident to or required by any such registration. "Selling Expenses" shall mean all selling commissions, underwriting fees and stock transfer taxes applicable to the number Registerable Securities and all fees and disbursements of Registrable Securities being offered or sold, the purchase price being paid therefor and counsel for any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable SecuritiesPurchaser.
Appears in 2 contracts
Samples: Preferred Stock and Warrant Purchase Agreement (Borealis Technology Corp), Preferred Stock and Warrant Purchase Agreement (Borealis Technology Corp)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (includinga) Promptly after, without limitationbut not later than 30 days after, the execution of an undertaking to file post-effective amendmentsClosing Date, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement (the "Registration Statement") with the Commission pursuant to Rule 415 SEC under the Securities Act on Form S-3 under to register the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) offer and resale of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of by the Warrant. Thereafter Purchasers (together, the Company "Registrable Securities"), and shall use its reasonable best efforts to cause such Registration Statement to become effective within 120 days from the Closing Date or not more than five days from the date upon which the Securities and other filings to be declared effective as soon as possible, and in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, Exchange Commission shall allow the Company will promptly respond to all SEC commentsaccelerate effectiveness, inquiries and requests, and shall request acceleration of effectiveness at whichever is shorter. In the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided event that the Company shall not be required in connection therewith or as a condition thereto fail to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the obtain effectiveness of the Registration Statement or within the threat or initiation 120-day period following the Closing Date, the Company hereby agrees that it shall pay to each Purchaser cash in an amount equal to 2% of any proceedings the total purchase price of the shares of common stock purchased by such Purchaser for that purposeeach and every thirty (30) day period with respect to which such Registration Statement shall not be effective. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review Until such time as the Registration Statement and all amendments and supplements thereto within a reasonable period is effective, the Company shall not grant any registration rights or other rights to register securities under the Securities Act unless such rights are subordinate to the rights of time (but not less than two (2) full Trading Days) prior to each filing and the Purchasers under this Section 5.1 or will not request acceleration have the effect of delaying a sale or limiting the number of securities which may be sold by the Purchasers pursuant to the Registration Statement without prior notice to such counsel.
(viii) List or otherwise adversely affect the Registrable Securities covered by such Registration Statement on rights of the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchangePurchasers under this Section 5.1.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take pay all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period Expenses (as defined below)) in connection with any registration, andqualification or compliance hereunder, during such period, comply with the provisions of the Securities Act with respect and each Purchaser shall pay all Selling Expenses (as defined below) and other expenses that are not Registration Expenses relating to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities thatresold by such Purchaser. "Registration Expenses" shall mean all expenses, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi)except for Selling Expenses, and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing incurred by the Company that in complying with the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the registration provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securitiesherein described, including, without limitation, information with respect all registration, qualification and filing fees, printing expenses, escrow fees, fees and disbursements of counsel for the Company, blue sky fees and expenses and the expense of any special audits incident to the number of Registrable Securities being offered or soldrequired by any such registration. "Selling Expenses" shall mean all selling commissions, the purchase price being paid therefor underwriting fees and any other terms of the offering of stock transfer taxes applicable to the Registrable Securities to be sold in such offering; (ii) as soon as practicable make and all required filings fees and disbursements of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to counsel for any Registration Statement if reasonably requested by a Holder holding any Registrable SecuritiesPurchaser.
Appears in 2 contracts
Samples: Stock and Warrant Purchase Agreement (Nastech Pharmaceutical Co Inc), Stock and Warrant Purchase Agreement (Nastech Pharmaceutical Co Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days (or, if the SEC elects to review the [*] Redacted for Confidential Treatment Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.. [*] Redacted for Confidential Treatment
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in [*] Redacted for Confidential Treatment good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Securities Purchase Agreement (Star Scientific Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (includinga) Promptly after, without limitationbut not later than 45 days after, the execution of an undertaking to file post-effective amendmentsClosing Date, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement (the "Registration Statement") with the Commission pursuant to Rule 415 SEC under the Securities Act on Form S-3 under to register the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) offer and resale of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of by the Warrant. Thereafter Purchasers (together, the Company "Registrable Securities"), and shall use its reasonable best efforts to cause such Registration Statement to become effective within 105 days from the Closing Date or not more than five days from the date upon which the Securities and other filings to be declared effective as soon as possible, and in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, Exchange Commission shall allow the Company will promptly respond to all SEC commentsaccelerate effectiveness, inquiries and requests, and shall request acceleration of effectiveness at whichever is shorter. In the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided event that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or fail to file a general consent the Registration Statement within the 45-day period following the Closing Date or shall fail to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the obtain effectiveness of the Registration Statement within the 105--day period following the Closing Date, the Company hereby agrees that it shall issue to each Purchaser Warrants to purchase such number of shares of Common Stock equal to 5% of the total number of shares purchased by such purchaser for each and every thirty (30) day period with respect to which such Registration Statement shall not be filed or effective, as the threat or initiation case may be (the "Penalty Warrant"); provided, however, that if the Placement Agent received an opinion of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders Company to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration effect that the delay in obtaining effectiveness of the Registration Statement was in no way attributable to any actions taken or failed to be taken by the Company, then, such 105-day period shall be extended to 135 days without prior notice any Penalty Warrants required to such counsel.
(viii) List be issued. The Penalty Warrants shall have an exercise price per share equal to the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which price of the Common Stock as quoted by AMEX on the Closing Date and shall be exercisable for a period of three years from the date of issuance and shall contain anti-dilution provisions and other provisions similar to those contained in the Warrants. Until such time as the Registration Statement is then listed and prepare and file effective, the Company shall not grant any required filings with registration rights or other rights to register securities under the Securities Act unless such principal market rights are subordinate to the rights of the Purchasers under this Section 5.1 or exchangewill not have the effect of delaying a sale or limiting the number of securities which may be sold by the Purchasers pursuant to the Registration Statement or otherwise adversely affect the rights of the Purchasers under this Section 5.1.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take pay all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period Expenses (as defined below)) in connection with any registration, and, during such period, comply with the provisions of the Securities Act with respect qualification or compliance hereunder and each Purchaser shall pay all Selling Expenses (as defined below) and other expenses that are not Registration Expenses relating to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities thatresold by such Purchaser. "Registration Expenses" shall mean all expenses, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi)except for Selling Expenses, and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing incurred by the Company that in complying with the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the registration provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securitiesherein described, including, without limitation, information with respect all registration, qualification and filing fees, printing expenses, escrow fees, fees and disbursements of counsel for the Company, blue sky fees and expenses and the expense of any special audits incident to the number of Registrable Securities being offered or soldrequired by any such registration. "Selling Expenses" shall mean all selling commissions, the purchase price being paid therefor underwriting fees and any other terms of the offering of stock transfer taxes applicable to the Registrable Securities to be sold in such offering; (ii) as soon as practicable make and all required filings fees and disbursements of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to counsel for any Registration Statement if reasonably requested by a Holder holding any Registrable SecuritiesPurchaser.
Appears in 1 contract
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, including without limitation, limitation the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky "Blue Sky" or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, include the following:
(a) The Company shall, as expeditiously as reasonably possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):Closing Date:
(i) But in any event within 30 days of the filing of the Company’s 2004 10-Kthereafter, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the CompanyAct) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (such registration statement, including all of the “documents incorporated or deemed to be incorporated by reference therein, is referred to herein as the "Registration Statement”"), which Registration Statement, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of the Debentures or exercise of the Warrants; provided, however, that the Holders shall not be identified as "underwriters" in the Registration Statement, with respect to the sale of Registrable Securities. The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) two times the sum of the number of Common Shares and that would then be issuable upon conversion of the Debentures if the Debentures were then convertible plus (B) one and one-half times the number of Warrant Shares issuable upon full exercise of the WarrantWarrants (assuming all Warrants were issued) in each case without regard to any limitation on the Purchaser's ability to convert the Debentures or Warrants. Thereafter Thereafter, the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days (or, if following the SEC elects Closing Date. The Company shall provide Holders and their legal counsel reasonable opportunity to review the any such Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”)Statement or amendment or supplement thereto prior to filing. The Company shall provide Holders and their legal counsel reasonable opportunity to review any such Registration Statement or amendment or supplement thereto prior to filing. Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. If the Company is not initially eligible to use Form S-3, it will, at the request of a majority-in-interest of the holders of Registrable Securities, amend its Form S-1 to a Form S-3 at such time that it becomes eligible to do so. The Company shall provide notify the Holders reasonable opportunity in writing (A) within one day following each of the SEC's clearance to review request acceleration of effectiveness of the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding and the Holders prior to filingCompany's request for such acceleration of effectiveness and (B) immediately upon the SEC's declaration of such effectiveness.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish After the Registration Statement is declared effective, furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register Use its best efforts to register and qualify the securities covered by such Registration Statement under the such other securities or “blue sky” "Blue Sky" laws of all domestic jurisdictions, to the extent requiredsuch jurisdictions as shall be reasonably requested by each Holder; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereofthereof and any information incorporated or deemed to be incorporated by reference therein) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit a single firm of counsel, designated as Holders' counsel to by the Holders of a majority in interest of the Registrable Securities included in the Registration Statement, to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing filing, and will shall not request acceleration of the Registration Statement without prior notice file any document in a form to which such counselcounsel reasonably objects.
(viii) List Use its best efforts to list the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed and prepare and file any required filings with such principal the National Association of Securities Dealers, Inc. or any exchange or market where the Common Stock is then traded.
(ix) Take all steps necessary to enable Holders to avail themselves of the prospectus delivery mechanism set forth in Rule 153 (or exchangesuccessor thereto) under the Act.
(b) In Set forth below in this Section 2(b) are (I) events that may arise that the event Purchaser considers will interfere with the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities full enjoyment of its rights under the Registration Statement is suspended for more than Debentures, the Purchase Agreement and this Agreement (the "Interfering Events"), and (II) certain remedies applicable in each of these events. Paragraphs (i) 45 days in any 90-day period or through (iiiv) 90 days in any calendar yearof this Section 2(b) describe the Interfering Events, including without limitation by reason of any suspension or stop order with respect provide a remedy to the Registration Statement or Purchaser if an Interfering Event occurs and provide that the fact Purchaser may require that an event has occurred the Company redeem outstanding Debentures at a specified price if certain Interfering Events are not timely cured. Paragraph (vi) provides, inter alia, that if cash payments required as a result the remedy in the case of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 certain of the circumstances then existingInterfering Events are not paid when due, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of Purchaser to redeem outstanding Debentures at a specified price. Paragraph (ix) provides, inter alia, that the Commission or (ii) it is determined in good faith by Purchaser has the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company right to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspensionspecific performance. The Company will use reasonable best efforts preceding paragraphs in this Section 2(b) are meant to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, serve only as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant an introduction to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi2(b), are for convenience only, and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed not to be incorporated by reference considered in such Prospectus applying, construing or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of interpreting this paragraphSection 2(b).
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (U S Plastic Lumber Corp)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):Closing Date:
(i) i. But in any event within 30 days of the filing of the Company’s 2004 10-KClosing, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the CompanyAct) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “"Registration Statement”"), which Registration Statement, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of the Preferred Shares. In the event that the Registrable Securities issuable upon conversion of the Initial Preferred Shares (the "INITIAL REGISTRABLE SECURITIES") can be registered on Form S-3, but the Registrable Securities issuable upon conversion of the Additional Preferred Shares (the "ADDITIONAL REGISTRABLE SECURITIES") cannot, then the Company shall file two separate Registration Statements, one on Form S-3 to cover the Initial Registrable Securities and the other, on such form as the Company shall be permitted to use, to cover the Additional Registrable Securities. In such case, all references herein to "Registration Statement" shall refer to both Registration Statements. The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) two times the number of Common Shares and (B) the Warrant Shares that are then issuable upon full exercise conversion of the WarrantPreferred Shares. Nothing in the preceding sentence will limit the Company's obligations to reserve shares of Common Stock pursuant to Section 3.7 of the Purchase Agreement. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 60 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”)Closing Date. Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) . Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the EXHIBIT 10.3 Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) . Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) . Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” "Blue Sky" laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (Secure Computing Corp)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (includinga) Promptly after, without limitationbut not later than 30 days after, the execution of an undertaking to file post-effective amendmentseach Closing Date, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement (the "Registration Statement") with the Commission pursuant to Rule 415 SEC under the Securities Act on Form S-3 under to register the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) re-offer and resale of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of by the Warrant. Thereafter Purchasers (together, the Company "Registrable Securities"), and shall use its reasonable best efforts to cause such Registration Statement to become effective within ninety (90) days from the applicable Closing date, or not more than five days from the date upon which the Securities and other filings to be declared effective as soon as possible, and in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, Exchange Commission shall allow the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at accelerate effectiveness. In the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided event that the Company shall not be required in connection therewith or as a condition thereto fail to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the obtain effectiveness of the Registration Statement or within the threat or initiation 90 -day period following the applicable Closing Date, the Company hereby agrees that it shall pay to each Purchaser in cash, an amount equal to 2% of any proceedings the total dollar amount purchased by such Purchaser for that purpose. The Company each and every thirty (30) day period after the 90 day period, with respect to which such Registration Statement shall use its reasonable best efforts not be effective (the "Penalty Payment"), with the first payment to prevent be made on the issuance of any stop order and91st day following the applicable Closing Date and each additional 2% payment, if any stop order is issuedany, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review be made each 30 day period thereafter. Until such time as the Registration Statement and all amendments and supplements thereto within a reasonable period is effective, the Company shall not grant any registration rights or other rights to register securities under the Securities Act unless such rights are subordinate to the rights of time (but not less than two (2) full Trading Days) prior to each filing and the Purchasers under this Section 5.1 or will not request acceleration have the effect of delaying a sale or limiting the number of securities which may be sold by the Purchasers pursuant to the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchangeStatement.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take pay all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period Expenses (as defined below)) in connection with any registration, andqualification or compliance hereunder, during such period, comply with the provisions of the Securities Act with respect and each Purchaser shall pay all Selling Expenses (as defined below) and other expenses that are not Registration Expenses relating to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities thatresold by such Purchaser. "Registration Expenses" shall mean all expenses, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi)except for Selling Expenses, and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing incurred by the Company that in complying with the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the registration provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securitiesherein described, including, without limitation, information with respect all registration, qualification and filing fees, printing expenses, escrow fees, fees and disbursements of counsel for the Company, blue sky fees and expenses and the expense of any special audits incident to the number of Registrable Securities being offered or soldrequired by any such registration. "Selling Expenses" shall mean all selling commissions, the purchase price being paid therefor underwriting fees and any other terms of the offering of stock transfer taxes applicable to the Registrable Securities to be sold in such offering; (ii) as soon as practicable make and all required filings fees and disbursements of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to counsel for any Registration Statement if reasonably requested by a Holder holding any Registrable SecuritiesPurchaser.
Appears in 1 contract
Samples: Stock and Warrant Purchase Agreement (American Medical Alert Corp)
Registration Requirements. The (a) No earlier than April 1, 2000, but no later than May 31, 2000, the Company shall (i) file with the SEC a registration statement on Form S1 (together with any prospectus included therein, a "Registration Statement") pursuant to Rule 415 of the Securities Act in order to register with the SEC the continuous resale by the Purchasers, from time to time, of all shares of Common Stock constituting Immediately Registrable Securities that may be acquired by the Purchasers, through the Nasdaq SmallCap Market or the facilities of any national securities exchange on which the Common Stock is then traded, or in privatelynegotiated transactions, and (ii) use its reasonable best efforts to effect file an application for listing (a "Listing Application") of such Common Stock on the registration of NASDAQ SmallCap Market (the resale of "NSCM") or any other nationally recognized securities exchange (collectively with the Registrable Securities (including, without limitationNSCM, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder"Exchange"). Such reasonable The Company shall use its best efforts by to cause such Registration Statement to be declared effective on or before the 90th day after the Closing Date; provided, however, that if the SEC shall not have declared such Registration Statement effective on or before the 120th day after the Closing Date, the Company shall includethen issue a Compensation Warrant to each Purchaser on the 121st day (the "Compensation Trigger Date") after the Closing Date and, without limitationthereafter, an additional Compensation Warrant on each 30-day anniversary of such Compensation Trigger Date for so long as the following:
(a) SEC shall not have declared such Registration Statement effective. The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of shall further cause a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) Listing Application covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included issued or issuable in such Registration Statement shall respect of, on exercise of, or on conversion of, or constituting any Acquired Securities to be no less than filed with the sum of (A) Exchange on or before the Shares 120th day following the Closing Date and (B) the Warrant Shares issuable shall, upon full exercise of the Warrant. Thereafter the Company shall filing thereof, use its reasonable best efforts to cause such Registration Statement and other filings securities to be declared effective as soon as possible, and in any event prior accepted for trading upon the Exchange. Each Purchaser agrees to 90 days (or, if the SEC elects furnish promptly to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to in writing all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be information required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness for preparation of the Registration Statement or thereafter required from time to time to be disclosed in order to make the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel information previously furnished to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered Company by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchangeholder not misleading.
(b) In If at any time following the event the filing of a Registration Statement has become effective andby the Company, afterwards, any Holder’s ability the Company shall qualify to sell Registrable Securities file a registration statement on Form S3 under the Registration Statement is suspended for more than (iSecurities Act, the Company shall thereafter be entitled to replace any Form S1 registration statement referred to in Section 5.20(a) 45 days in above with a registration statement on Form S3 that has been declared effective by the SEC. Any such Form S3 used to replace a Form S1 pursuant to this Section 5.20(b), together with any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Form S3, shall thereafter be referred to as a "Registration Statement then in effect includes an untrue statement of material fact or omits to state a material fact required Statement" and any Form S1 that is so replaced shall cease to be stated therein or necessary referred to make the statements therein not misleading in light by that term for purposes of the circumstances then existing, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleadingthis Agreement.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take pay all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period Expenses (as defined below) in connection with any registration, qualification or compliance hereunder, and each Purchaser shall pay all Selling Expenses (as defined below) and other expenses that are not Registration Expenses relating to the Common Stock resold by such Purchaser. "Registration Expenses" shall mean all expenses, except for Selling Expenses, incurred by the Company in complying with the registration provisions herein described, including without limitation, all registration, qualification and filing fees (including all SEC and Nasdaq fees), andprinting expenses, during such periodescrow fees, comply with the provisions fees and disbursements of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement counsel for the Company to amend or supplement and for any underwriter (unless paid by such Registration Statement.
(h) Each Holder agrees by its acquisition of underwriter), blue sky fees and expenses, the Registrable Securities that, upon receipt of a notice from the Company of the occurrence expense of any event special audits incident to or required by any such registration and the reasonable fees and disbursements of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi)one counsel to all selling Purchasers. "Selling Expenses" shall mean only selling commissions, underwriting discounts and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the stock transfer taxes applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale Common Stock sold by each Purchaser and distribution all fees and disbursements of Registrable Securitiescounsel for any Purchaser (which counsel, includingif any, without limitation, information with respect shall be additional to the number of Registrable Securities being offered or sold, one counsel to all selling Purchasers referenced in the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securitiespreceding sentence).
Appears in 1 contract
Samples: Series C Preferred Stock Purchase Agreement (Net Value Holdings Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):Closing Date:
(i) But in any event within 30 10 days of the filing of the Company’s 2004 10-KClosing, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the CompanyAct) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities and no other securities (except (1) shares of Common Stock issuable upon exercise of Warrants issued to Shoreline Pacific Institutional Finance, the “Institutional Division of Financial West Group or its designees, (2) securities to be registered pursuant to the registration rights agreement included in the Preferred Stock Agreements ("March Registration Rights Agreement"), and (3) those shares listed on Schedule A attached hereto ("Registration Statement”"), which Registration Statement, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon exercise of the Warrants. The number of shares of Common Stock initially included in such Registration Statement shall be no less than 260,000 shares of Common Stock plus the sum other shares registrable from the Preferred Stock Agreements or as set forth on Schedule A hereto. Nothing in the preceding sentence will limit the Company's obligations to reserve shares of (A) the Shares and (B) the Warrant Shares issuable upon full exercise Common Stock pursuant to Section 3.7 of the WarrantPurchase Agreement. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 45 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”)Closing Date. Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing. In the event any additional Warrant Shares are issuable upon exercise of the Warrants in excess of the number of Warrant Shares subject to an effective Registration Statement, pursuant to adjustments under Section 12 of the Warrants or otherwise, the Company shall promptly prepare and file with the SEC such amendments, supplements or additional Registration Statements covering the resale of such additional Warrant Shares (with all terms herein applying to such additional Registration Statements).
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” "Blue Sky" laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) 3 full Trading DaysDays (as defined in the Certificate)) prior to each filing filing, and shall not file any document in a form to which such counsel reasonably objects and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed and prepare and file any required filings with such principal the Nasdaq National Market or any exchange or market where the Common Shares are traded.
ix) Take all steps necessary to enable Holders to avail themselves of the prospectus delivery mechanism set forth in Rule 153 (or exchangesuccessor thereto) under the Act.
(b) In Set forth below in this Section 2(b) are (I) events that may arise that the event Investors consider will interfere with the Registration Statement has become effective andfull enjoyment of their rights under this Agreement, afterwardsthe Purchase Agreement and the Warrants (the "Interfering Events"), any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than and (II) certain remedies applicable in each of these events. Paragraphs (i) 45 days in any 90-day period or through (iiiv) 90 days in any calendar yearof this Section 2(b) describe the Interfering Events, including without limitation by reason of any suspension or stop order with respect provide a remedy to the Registration Statement or Investors if an Interfering Event occurs and provide that the fact Investors may require that an event has occurred the Company repurchase outstanding Common Shares, Warrants and Warrant Shares at a specified price if certain Interfering Events are not timely cured. Paragraph (v) provides, inter alia, that if default adjustments required as a result the remedy in the case of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 certain of the circumstances then existingInterfering Events are not provided when due, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules Investors to redeem outstanding Common Shares, Warrants and regulations of Warrant Shares at a specified price. Paragraph (vi) provides, inter alia, that the Commission or (ii) it is determined in good faith by Investors have the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company right to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspensionspecific performance. The Company will use reasonable best efforts preceding paragraphs in this Section 2(b) are meant to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, serve only as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant an introduction to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi2(b), are for convenience only, and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed not to be incorporated by reference considered in such Prospectus applying, construing or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of interpreting this paragraphSection 2(b).
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Registration Requirements. The Company shall use its reasonable best commercial efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the HolderHolder on a Principal Market. Such reasonable best commercial efforts by the Company shall include, without limitation, include the following:
(a) The Company shall, as expeditiously as possible reasonably practicable after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):Closing Date:
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare Prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the CompanyAct) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities ("REGISTRATION STATEMENT") which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the “statements therein not misleading. Such Registration Statement”). The Statement shall initially register for resale a number of shares of Common Stock initially included in such Registration Statement shall be no less than equal the sum number of (A) the Shares and (B) the Warrant Common Shares issuable upon full the conversion or exercise of the WarrantDebentures and Warrants. Thereafter Such Registration Statement shall, in addition and without limitation, register (pursuant to Rule 416 under the Securities Act, or otherwise) such additional indeterminate number of Registrable Securities as shall be necessary to permit the conversion in full of the Debentures or exercise of the Warrants to prevent dilution resulting from stock splits, stock dividends or similar transactions. Thereafter, the Company shall use its reasonable best commercial efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior within to 90 days following the Closing Date (the "EFFECTIVE DATE"); PROVIDED, HOWEVER, that, notwithstanding Sections 2(a)(ii) and 2(a)(v) below, the Company's obligations hereunder to file a Registration Statement and to keep a registration statement continuously in effect under the Securities Act shall be suspended if (A) the fulfillment of such obligations would require the Company to make a disclosure that would, in the reasonable judgment of the Company's Board of Directors, have a Material Adverse Effect (as such term is defined in the Purchase Agreement) on the Company or a material adverse effect on the future prospects of the Company or its stockholders, (B) the Company has filed or proposes to file a registration statement with respect to any of its securities to be distributed in an underwritten public offering and it is advised by its lead or managing underwriter that an offering by a Holder of Registrable Securities would materially adversely affect the distribution of such securities, or (C) the fulfillment of such obligations would require the Company to prepare financial statements under the Securities Act that would not otherwise be required to be prepared by the Company in order to comply with its obligations under the Exchange Act. Such obligations shall be reinstated (x) in the case of clause (A) above, upon the making of such disclosure by the Company (or, if earlier, when such disclosure would either no longer be necessary for the SEC elects fulfillment of such obligations or no longer be detrimental), (y) in the case of clause (B) above, upon the conclusion of any period during which the Company would not, pursuant to review the Registration Statementterms of its underwriting arrangements, 180 daysbe permitted to sell Registrable Securities for its own account and (z) following in the filing case of clause (C) above, as soon as it would no longer be necessary to prepare such financial statements to comply with the Securities Act. In the event that the Company's obligations are suspended as provided above, the Company shall deliver a certificate in writing, signed by an officer of the Company’s 2004 10-K (the “Effectiveness Deadline”, to each Holder, which shall state that its obligations hereunder have been suspended in accordance with this Section 2(a)(i). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective, subject to Section 2(a)(i) above, and to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such HolderHolder and, in the case of the Registration Statement referred to in Section 2(a)(i), each letter written by or on behalf of the Company to the SEC or the staff of the SEC, and each item of correspondence from the SEC or the staff of the SEC, in each case relating to such Registration Statement (other than any portion of any thereof which contains information for which the Company has sought confidential treatment). The Company will immediately notify the Holder by facsimile of the effectiveness of the Registration Statement or any post-effective amendment. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing the Registration Statement or any amendment thereto to be declared effective by the SEC as soon as reasonably practicable and shall promptly file an acceleration request as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that the Registration Statement or any amendment thereto will not be subject to review.
(iva) Register If legally required, register and qualify qualify, or obtain an appropriate exemption from registration or qualification, the securities covered by such Registration Statement under the such other securities or “blue sky” "Blue Sky" laws of such jurisdictions as shall be reasonably requested by each Holder (b) prepare and file in those jurisdictions such supplements (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof, (c) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all domestic times, and (d) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions, and shall not be required to register or qualify in any jurisdiction where such registration or qualification is not permitted or approved by such jurisdiction following the Company's reasonable efforts to obtain such permission or approval.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectusprospectus to correct such untrue statement or omission, and deliver such number of copies of such supplement or amendment to each Holder as such Holder may reasonably request.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible practicable time.
(vii) Permit a single firm of counsel, designated as Holders' counsel to by the Holders of a majority of the Registrable Securities included in the Registration Statement (the fees and expenses of which shall be paid in their entirety by the Holders not withstanding Section 3 below), to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing filing, and will shall not request acceleration of the Registration Statement without prior notice to such counsel. The sections of the Registration Statement covering information with respect to the Investors, the Investors' beneficial ownership of securities of the Company or the Investor's intended method of disposition of Registrable Securities shall conform in all material respects to the information provided to the Company by the Investors.
(viii) List the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed and prepare and file any required filings with the National Association of Securities Dealers, Inc. or any exchange or market where the Common Shares are then traded.
(ix) If applicable, take all reasonable steps necessary to enable Holders to avail themselves of the prospectus delivery mechanism set forth in Rule 153 (or successor thereto) under the Act.
(x) The Company shall hold in confidence and not make any disclosure of information concerning the Investors provided to the Company unless (a) disclosure of such principal market information is reasonably necessary in the Company's good faith judgment to comply with federal or exchangestate securities laws, (b) the disclosure of such information is reasonably necessary in the Company's good faith judgment to avoid or correct a misstatement or omission in any Registration Statement, (c) the release of such information is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction, or (d) such information has been made generally available to the public other than by disclosure in violation of this or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor prior to making such disclosure, and allow each Investor, at its expense, to undertake appropriate action to prevent disclosure of, or obtain a protective order for, such information.
(xi) The Company shall provide a transfer agent (the "Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the effective date of the Registration Statement.
(xii) The Company shall cooperate with the Investors who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investors may reasonably request and registered in such names as the Investors may request, and, within three (3) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the transfer agent for the Registrable Securities (with copies to the Investors whose Registrable Securities are included in such Registration Statement) an instruction in the form attached hereto as EXHIBIT 1 and an opinion of such counsel in the form attached hereto as EXHIBIT 2.
(xiii) From and after the date of this Agreement, except for shares of Common Stock listed on Schedule 2.1(a) attached hereto, the Company shall not, and shall not agree to, allow the holders of any securities of the Company to include any of their securities in any Registration Statement under this Section 2(a) without the consent of the holders of a majority-in-interest of the Registrable Securities.
(xiv) The Company shall take all other reasonable actions necessary to allow disposition by the Investors of Registrable Securities pursuant to the Registration Statement.
(b) In Set forth below in this Section 2(b) are (I) events that may arise that the event Investors consider will interfere with the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities full enjoyment of their rights under the Registration Statement is suspended for more than the Purchase Agreement and this Agreement (the "Interfering Events"), and (II) certain remedies applicable in each of these events. Paragraphs (i) 45 days in any 90-day period or through (iiiv) 90 days in any calendar yearof this Section 2(b) describe the Interfering Events, including without limitation by reason of any suspension or stop order with respect provide a remedy to the Registration Statement or the fact Investors if an Interfering Event occurs and provide that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 each of the circumstances then existing, then Investors may require that the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such convert outstanding shares of Debentures at a specified price if certain Interfering Events are not timely cured. Paragraph (v) provides, INTER ALIA, that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact if cash payments required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating remedy in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements certain of the Interfering Events are not paid when due, the Company may be required by each of the Investors to convert outstanding Debentures at a Registration Statement which specified price. Paragraph (vi) provides, INTER ALIA, that the Investors have the right to specific performance. The preceding paragraphs in this Section 2(b) are required meant to be filed pursuant to this Agreement (including pursuant serve only as an introduction to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi2(b), are for convenience only, and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed not to be incorporated by reference considered in such Prospectus applying, construing or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of interpreting this paragraphSection 2(b).
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Registration Requirements. The Company shall use its reasonable diligent best efforts to effect the registration of the resale of the Registrable Securities contemplated by the Agreement (including, without limitation, the execution of an undertaking to file post-post- effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the HolderHolders under a broad-based plan of distribution reasonably acceptable to the Holders. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously soon as possible practicable after the filing of date hereof, but in no event later than the Report on Form 10-K for the year ended December 31Filing Date, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
file (i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in covering the event that the Company is ineligible Registrable Securities so requested to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales registered by the Holders as selling stockholders (not underwriters) any Holder of the Registrable Securities (the “"Initial Shelf Registration Statement”"); (ii) such blue sky filings as shall have been requested by the Holders; and (iii) any required filings with the National Association of Securities Dealers, Inc., The Nasdaq SmallCap Market or such other exchange or market on which the Shares are traded. The Thereafter, the Company shall use its best efforts to (i) respond to all comments received from the Commission on the Shelf Registration Statement and/or any documents incorporated by reference therein within 10 business days of receipt of such comments and (ii) have such Shelf Registration Statement and other filings declared effective as promptly as practicable but in no event later than 90 days after the date of the Agreement. If an additional Registration Statement is required to be filed because the actual number of Shares into which the Preferred Stock is convertible and the Warrants are exercisable exceeds the number of shares of Common Stock initially included in such Registration Statement registered, including, without limitation, as a result of the exercise of a Call Option by one or more Subscribers, the Company shall be no less than have 20 business days after the sum earlier of (Ai) the Shares and expiration of the Option Period or (Bii) the Warrant Shares issuable upon full exercise receipt of the Warrant. Thereafter written notice by each Subscriber that such Subscriber's Call Option has been exercised, to file such additional Registration Statement, and the Company shall use its reasonable best efforts to cause such additional Registration Statement and other filings to be declared effective by the Commission as soon as possible, and but in any no event prior to 90 later than 60 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to after filing.
(b) The Company and the Subscribers agree that the Holders will suffer damages if the Registration Statement is not filed on or prior to the Filing Date and not declared effective by the Commission on or prior to the 90th day after the date of this Agreement and maintained in the manner contemplated herein during the Effectiveness Time or if certain other events occur. The Company and the Holders further agree that it would not be feasible to ascertain the extent of such damages with precision. Accordingly, if (i) the Registration Statement is not filed with the Commission by the Filing Date, (ii) Prepare and file with the SEC such amendments and supplements Company shall fail to such respond to all comments received from the Commission on the Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and and/or any documents incorporated by reference therein and within 10 business days of receipt of such other documents as such Holder may reasonably require in order to facilitate comments, (iii) after 120 days from the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(b) In the event date hereof the Registration Statement has become not been declared effective andby the Commission, afterwardsor (iv) in the event an additional Registration Statement, which is filed because the actual number of Shares exceeds the number of shares of Common Stock initially registered, is not filed and declared effective with the time periods set forth in Section 2(a) (any such failure or breach being referred to as an "Event," and the date on which such Event occurs, being referred to as "Event Date"), the Holders shall have, in addition to, and without limiting, any Holder’s ability other rights they may have at law, in equity or under the Certificate, the Agreement or this Registration Rights Agreement (including the right to sell Registrable Securities under specific performance), the right to receive from the Company, as liquidated damages, an amount equal to 1.5% of the Aggregate Value (as defined in the Certificate) of the shares of Preferred Stock held by such Holder plus the Aggregate Value of any shares of Preferred Stock that have been converted to the extent any of the Underlying Common Shares issued upon such conversion have not been sold, in cash, for each 30-day period (or portion thereof) from the Event Date until the applicable Event is cured. Payments to be made pursuant to this Section 2(b) shall be due and payable immediately upon demand in immediately available funds. In addition to the foregoing, if at any time after 150 days from the date hereof, the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar yearhas not been declared effective by the Commission, including without limitation by reason then upon demand of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 existingHolder, then the Company shall take redeem all or any specified portion of the Preferred Stock held by such action as may be necessary Holder at a redemption price equal to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus125% of the Aggregate Value thereof, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make together with all other payments due under this Section 2 and under the statements not misleadingCertificate and the Agreement.
(c) If the Holder(s) Holders intend to distribute the Registrable Securities covered by the Registration Statement by means of an underwriting, the Holder(s) Holders shall so advise the Company. Any The Holders will have the right to select the investment bankers for such underwriting may only be administered by nationally or regionally recognized subject to such investment bankers being reasonably satisfactory to the Company. If in the opinion of the managing underwriter the inclusion of all of the Registrable Securities requested to be registered under this Section 2 would adversely affect the marketing of such shares, after any shares to be sold by the Company or other holders of Common Stock have been excluded, Registrable Securities to be sold by the holders shall be excluded in such manner that the Registrable Securities to be sold shall be allocated among the selling Holders pro rata based on their ownership of Registrable Securities.
(d) The Company shall enter into such customary agreements (including an a customary underwriting agreement containing such representations and warranties by with the Company and such other terms and provisionsunderwriter or underwriters, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Companyif any) and take all such other reasonable actions as the Holder or the underwriters participating in such offering and sale may reasonably request connection therewith in order to expedite or facilitate the disposition of such offering Registrable Securities. If the Registrable Securities are being offered and sale other than sold in an underwritten offering, the Company shall: (i) make such actions which are disruptive representations and warranties to the Holders and the underwriter or underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in secondary underwritten offerings; (ii) cause to be delivered to the sellers of Registrable Securities and the underwriter or underwriters, if any, opinions of counsel to the Company, dated the date of delivery of any Registrable Securities sold pursuant to the Registration Statement (which counsel and opinions (in form, scope and substance), shall be reasonably satisfactory to the managing underwriter or underwriters, if any, and the appointed representative or counsel of the Holders), addressed to the Holders and each underwriter, if any, covering the matters customarily covered in opinions requested in secondary underwritten offerings and, in the case of an underwritten offering, such other matters as may be reasonably requested by the Holders; (iii) cause to be delivered, immediately prior to the effectiveness of the Registration Statement (and, in the case of an underwritten offering, at the time of delivery of any Registrable Securities sold pursuant thereto), a "comfort" letter from the Company's independent certified public accountants addressed to the Holders and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable published rules and regulations thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent certified public accountants delivered in connection with secondary underwritten public offerings; (iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification and contribution provisions and procedures of Sections 6 and 7 with respect to all parties to be indemnified pursuant to such sections; and (v) the Company shall deliver such documents and certificates as may be reasonably requested by the Holders of the Registrable Securities being sold or require significant management availability.
the managing underwriter or underwriters, if any, to evidence compliance with clause (i) above and with any customary conditions contained in the underwriting agreement, if any, or other agreement entered into by the Company; the foregoing actions in this Section 2(d) shall be undertaken at each closing under such underwriting or similar agreement or as and to the extent required thereunder. (e) The Company shall make available for inspection by a representative or representatives of the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder such Holders or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closingsuch purposes, pertinent corporate documents and properties of the Company, and cause the Company’s 's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties . The Holders will agree to keep all non-public information supplied to it confidential until such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be included in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file filed with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration StatementCommission.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (Centura Software Corp)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities Common Stock (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities Common Stock in the manner (including manner of sale) and in all states reasonably requested by the HolderInvestor for purposes of maximizing the proceeds realizable by the Investor from such sale or distribution. Such reasonable best efforts by the Company shall include, include without limitation, limitation the following:
(a) The Company shall, as expeditiously as possible after Subject to the filing terms and conditions of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectivelythis Rights Agreement, the “Company’s 2004 10-K”):
Company shall file with the Commission (i) But in any event within 30 days of the filing of the Company’s 2004 10-Kno later than August 18, prepare and file a 2000, an appropriate registration statement with the Commission pursuant to Rule 415 on Form F-3 (or any successor or other appropriate form) under the Securities Act on Form S-3 under for the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) registration of the Registrable Securities Common Stock (the “"Registration Statement”). The number of shares of Common Stock initially included in such ") which Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be have been declared effective as soon as possibleby the Commission no later than ninety (90) days from the Agreement Date. Furthermore, and in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions time of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or file (A) such blue sky filings as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically shall have been requested by a Holderthe Investor; and (B) as a result any required filings with the National Association of which Securities Dealers, Inc. or exchange or market where the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purposeCommon Stock is traded. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible timehave all filings declared effective as promptly as practicable.
(viii) Permit counsel If the Company (A) fails to the Holders to review file the Registration Statement and all amendments and supplements thereto within a reasonable period complying with the requirements of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of this Rights Agreement by August 18, 2000 or if the Registration Statement has not become effective on or before ninety (90) days from the Agreement Date, the Investor shall have, in addition to and without prior notice limiting any other rights it may have at law, in equity or under the Agreement, or this Rights Agreement (including the right to such counselspecific performance), the right to receive, as liquidated damages, the payments as provided in subparagraph (ii) of this section.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(bii) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or deemed effective within ninety (ii90) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of days after the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 ActDate, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with pay to the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
Investor an amount equal to: (hA) Each Holder agrees by its acquisition 0.75% of the Registrable Securities that, upon receipt of Loan Amount per month (on a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(vpro-rated basis) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under if the Registration Statement until such Holder’s receipt becomes effective anytime from ninety-one (91) days to one hundred thirty-five (135) days after the Agreement Date and (B) 1.0% of the copies of Loan Amount per month (on a pro-rated basis) if the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by becomes effective anytime after one hundred thirty-five (135) days from the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraphAgreement Date.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (Asm International N V)
Registration Requirements. The Company shall use its reasonable diligent best efforts to effect the registration of the resale of the Registrable Securities contemplated by the Agreement (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the HolderHolders under a broad-based plan of distribution reasonably acceptable to the Holders. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously soon as possible practicable after the filing of date hereof but in no event later than 30 days after the Report on Form 10-K for the year ended December 31date hereof, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
file (i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the CompanyAct) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities so requested to be registered (the “"Registration Statement”"). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
; (ii) Prepare such blue sky filings as shall have been requested by the Holders; and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming any required filings with the requirements National Association of the ActSecurities Dealers, copies of the Registration StatementInc., any amendment The Nasdaq Small-Cap Market, or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities exchange or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed traded. Thereafter, the Company shall use its best efforts to have such Registration Statement and prepare other filings declared effective as promptly as practicable. The Company shall not permit any securities other than the Registrable Securities to be included in the Registration Statement and file any required filings with such principal market or exchange.shall use its best efforts to cause the Registration Statement to be declared
(b) In If after 120 days from the event date hereof, the Registration Statement has become not been declared effective andby the Commission, afterwardsthe Holders shall have, in addition to, and without limiting, any Holder’s ability to sell Registrable Securities other rights they may have at law, in equity or under the Debenture, the Warrant, the Agreement or this Registration Statement is suspended Rights Agreement (including the right to specific performance), the right to receive, as liquidated damages, an amount equal to 1.5% of the Aggregate Principal Amount (as defined in the Debenture), in cash, for more than (i) 45 days in any 90each 30-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in after such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such 120-day period that such Registration Statement is not effective (which payment shall be pro rated for any period of less than 30 days). In addition to the foregoing, if after 150 days from the date hereof, the Registration Statement has not been declared effective by the Commission, then upon demand of any Holder, the Company shall redeem all or prospectusany specified portion of the Debentures held by such Holder at a redemption price equal to 130% of the sum of (x) the Aggregate Principal Amount thereof, as so amendedplus (y) accrued but unpaid dividends thereon (whether or not earned or declared), shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make if any, together with all other payments due under this Section 2(b) and under the statements not misleadingDebentures, the Warrants and the Agreement.
(c) If the Holder(s) Holders intend to distribute the Registrable Securities covered by the Registration Statement by means of an underwriting, the Holder(s) Holders shall so advise the Company. Any The Holders will have the right to select the investment bankers for such underwriting may only be administered by nationally or regionally recognized subject to such investment bankers being reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an a customary underwriting agreement containing such representations and warranties by with the Company and such other terms and provisionsunderwriter or underwriters, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Companyif any) and take all such other reasonable actions in connection therewith in order to
(i) make such representations and warranties to the Holders and the underwriter or underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in secondary underwritten offerings;
(ii) cause to be delivered to the Holder sellers of Registrable Securities and the underwriter or underwriters, if any, opinions of counsel to the Company, dated the date of delivery of any Registrable Securities sold pursuant to the Registration Statement (which opinions (in form, scope and substance), shall be reasonably satisfactory to the managing underwriter or underwriters, if any) addressed to the Holders and each underwriter, if any, covering the matters customarily covered in opinions requested in secondary underwritten offerings and, in the case of an underwritten offering, such other matters as may be reasonably requested by the Holders;
(iii) cause to be delivered, immediately prior to the effectiveness of the Registration Statement (and, in the case of an underwritten offering, at the time of delivery of any Registrable Securities sold pursuant thereto), a "comfort" letter from the Company's independent certified public accountants addressed to the Holders and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable published rules and regulations thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent certified public accountants delivered in connection with secondary underwritten public offerings;
(iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification and contribution provisions and procedures of Sections 6 and 7 with respect to all parties to be indemnified pursuant to such sections; and
(v) the Company shall deliver such documents and certificates as may be reasonably requested by the Holders of the Registrable Securities being sold or the underwriters participating managing underwriter or underwriters, if any, to evidence compliance with clause (i) above and with any customary conditions contained in the underwriting agreement, if any, or other agreement entered into by the Company; the foregoing in this Section 2(d) shall be done at each closing under such offering underwriting or similar agreement or as and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availabilityextent required thereunder; provided, however, the foregoing in Section 2(d) shall be required on only one (1) occasion.
(e) The Company shall make available for inspection by a representative or representatives of the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder such Holders or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closingsuch purposes, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.the
Appears in 1 contract
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):Closing Date:
(i) But in any event within 30 by the later of September [__], 2005, or thirty (30) calendar days of after the filing of the Company’s 2004 10-KClosing Date ("REQUIRED FILING DATE"), prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 SB-2 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after SB-2 as soon as Form S-3 SB-2 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “"REGISTRATION STATEMENT"), which Registration Statement”, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon exercise of the Warrants. The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) 1.5 times the Shares and (B) the Warrant Shares issuable upon full exercise number of Registrable Securities as of the WarrantClosing Date. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days at 5:00 p.m. (or, New York City time) on the date the Registration Statement is declared effective and no later than (i) the 90th calendar day following the Closing Date or (ii) if the Registration Statement receives SEC elects to review review, then the Registration Statement, 180 daysone hundred twentieth (120th) following calendar day after the filing of the Company’s 2004 10-K Closing Date (the “Effectiveness Deadline”"REQUIRED EFFECTIVE DATE"). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish By 9:00 a.m. (New York City time) on the first business day after the effectiveness of the Registration Statement or the filing date of any amendments or supplements, as the case may be, furnish, by email to the respective email addresses set forth on the signature pages hereto, to each Holder that has Common Shares included in the Registration Statement such numbers of copies of a current prospectus conforming with the requirements of the Securities Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require request in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” "Blue Sky" laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify promptly each Holder immediately that has Registrable Securities included in the Registration Statement of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holderevent) of which the Company has knowledge as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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 existingexisting (each an "EVENT"), and use its reasonable best efforts to promptly update and/or correct such prospectus. Each Holder will hold in confidence and will not make any disclosure of any such Event and any related information disclosed by the Company.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed and prepare and file any required filings with such principal the Over The Counter Bulletin Board (the "OTCBB"), if any, or any other exchange or market where the Common Shares are traded.
(viii) Take all steps reasonably necessary to enable Holders to avail themselves of the prospectus delivery mechanism set forth in Rule 153 (or exchangesuccessor thereto) under the Act.
(b) In Notwithstanding the event obligations under Section 2(a)(v) or any provision of this Agreement, if (i) in the good faith judgment of the Company, following consultation with legal counsel, it would be detrimental to the Company and its stockholders for resales of Registrable Securities to be made pursuant to the Registration Statement has become effective and, afterwards, any Holder’s ability due to sell Registrable Securities under the existence of a material development or potential material development involving the Company that the Company would be obligated to disclose in the Registration Statement is suspended for more than (i) 45 days in any 90-day period Statement, which disclosure would be premature or otherwise inadvisable at such time or would have a material adverse effect upon the Company and its stockholders, or (ii) 90 days in any calendar yearthe good faith judgment of the Company, including without limitation by reason it would adversely affect or require premature disclosure of the filing of a Company-initiated registration of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result class of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 existingits equity securities, then the Company shall take such action as may be necessary will have the right to amend or supplement such suspend the use of the Registration Statement or prospectus such for one period of not more than 20 calendar days in any 12 month period, but only if the Company reasonably concludes, after consultation with outside legal counsel, that such the failure to suspend the use of the Registration Statement or prospectus, as so amended, shall not contain an untrue statement of such would create a material fact liability or omit to state a material fact required to be stated therein violation under applicable securities laws or necessary to make the statements not misleadingregulations.
(c) If Set forth below in this Section 2(c) are (I) events that may arise that the Holder(s) intend to distribute Purchasers consider will interfere with the Registrable Securities by means full enjoyment of an underwritingtheir rights under this Agreement, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement Purchase Agreement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under Warrants (the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi"INTERFERING EVENTS"), and upon notice (II) certain remedies applicable in each of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraphthese events.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (Powerhouse Technologies Group Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities contemplated by the Warrants (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holderwarrant holder for purposes of maximizing the proceeds realizable by the Investor from such sale or distribution. Such reasonable best efforts by the Company shall include, include without limitation, limitation the following:
(a) The Company shall, as expeditiously as possible after Subject to the filing terms and conditions of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectivelythis Rights Agreement, the “Company’s 2004 10-K”):
Company shall file with the Commission (i) But in any event within 30 no later than thirty (30) days from the date of execution of the filing of the Company’s 2004 10-KAgreement, prepare and file a an appropriate registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under for the Securities Act (or in registration of the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales resale by the Holders as selling stockholders (not underwriters) Investor of the Registrable Securities (the “"Registration Statement”). The number of shares of Common Stock initially included in such ") which Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be have been declared effective as soon as possibleby the Commission no later than one hundred twenty (120) days from the Effective Date. Furthermore, and in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions time of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or file (A) such blue sky filings as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically shall have been requested by a Holderthe Investor; and (B) as a result any required filings with the National Association of which Securities Dealers, Inc. or exchange or market where the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purposeShares are traded. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible timehave all filings declared effective as promptly as practicable.
(viii) Permit counsel If the Company (A) fails to the Holders to review file the Registration Statement and all amendments and supplements thereto complying with the requirements of this Rights Agreement within a reasonable period thirty (30) days from the date of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration the execution of the Agreement or if the Registration Statement has not become effective on or before one hundred twenty (120) days from the Effective Date, the Investor shall have, in addition to and without prior notice limiting any other rights it may have at law, in equity or under the Agreement, or this Rights Agreement (including the right to such counselspecific performance), the right to receive, as liquidated damages, the payments as provided in subparagraph (ii) of this section.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(bii) In the event the Company fails to obtain the effectiveness of a Registration Statement has become effective andwithin the time period set forth in Section 2(a), afterwardsthe Company shall pay to the Investor an amount equal to (A) $100, any Holder’s ability to sell Registrable Securities under in cash, for each day of the Registration Statement is suspended for more than thirty (i30) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation following the date by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of material fact or omits to state a material fact was required to be stated therein have been declared effective and (B) $500, in cash, for each day after such first thirty (30) day period. In addition to the foregoing, in the event the Company fails to maintain the effectiveness of a Registration Statement (or necessary to make the statements therein not misleading in light use of the circumstances then existingunderlying prospectus) throughout the period set forth in Section 5(a), then other than suspensions as set forth in Section 4, the Company shall take such action as may be necessary pay to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectusthe Investor an amount equal to $500, as so amendedin cash, shall not contain an untrue statement of per day, in which a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleadingsuspension has occurred.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other reasonable actions as the Holder or the underwriters participating in such offering and sale may reasonably request connection therewith in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (Elcom International Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, including without limitation, limitation the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the HolderPurchaser. Such reasonable best efforts by the Company shall include, without limitation, include the following:
(a) The Company shall, will as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any no event prior later than May 15, 2000 (the "Filing Deadline"), prepare and file with the Commission a registration statement (the "Registration Statement") on Form S-3 (if use of such form is then available to 90 the Company pursuant to the rules of the Commission and, if not, on such other form promulgated by the Commission for which the Company then qualifies and that counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with the provisions of this Agreement and in accordance with the intended method of distribution of such Registrable Securities), and use its commercially reasonable efforts to cause such filed Registration Statement to become effective by the Effectiveness Deadline. The Company's obligation hereunder may, at the Company's option, be accomplished by including the Registrable Securities in a registration statement pursuant to which the Company also registers other securities of the Company. The "Effectiveness Deadline" shall mean one hundred and twenty (120) days from the date hereof; provided that such date shall be extended for such reasonable additional number of days (or, if not to exceed ninety (90) days) that the SEC elects Company (i) delays the timely filing of a report filed under the Exchange Act containing financial statements (or that the Company requires in order to review restate its financial statements included in a report filed under the Exchange Act) or (ii) delays the filing or effectiveness of the Registration Statement in order to amend the disclosure included in the Registration Statement, 180 days) following the filing in each case solely as a result of the Company’s 2004 10-K Company or any subsidiary entering into a transaction (such as a merger or acquisition or disposition of a business) which transaction is required to be reflected in such financial statements or which otherwise is required to be reflected in the “Effectiveness Deadline”Registration Statement (together "Delaying Events"). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare will as expeditiously as possible prepare and file with the SEC Commission such amendments and supplements to such the Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at effective, for a period of not less than: (i) in the case of a non-underwritten offering of Registrable Securities, until there shall no longer be any Registrable Securities or (ii) with respect to an underwritten offering of Registrable Securities, ninety (90) days after the commencement of the distribution of all times during Registrable Securities covered by such Registration Statement (but not before the Registration Period (as defined belowexpiration of the period referred to in Section 4(3) of the Securities Act and Rule 174 thereunder, if applicable), and, during such period, and the Company will comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company securities covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated during such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements period in accordance with the SEC on intended methods of disposition by the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement Purchaser set forth in such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the any Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, shall as expeditiously as possible after the filing Closing Date (except in the case of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004i) (collectively, the “Company’s 2004 10-K”below):
(i) But in any event within 30 Within seventy-five (75) calendar days of after the filing of the Company’s 2004 10-KClosing, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the CompanyAct) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”"REGISTRATION STATEMENT"). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 100 days (or, following the Closing Date; provided that if the SEC elects to review reviews and gives comments on the Registration StatementStatement requiring changes and amendments thereto before it will declare the Registration Statement effective, 180 days) then the Company shall use its best efforts to have the Registration Statement and other filings declared effective no later than 130 days following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”)Closing Date. Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and promptly notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” "Blue Sky" laws of all domestic jurisdictions; provided, to the extent required; provided however, that the Company shall not be required in connection therewith or as a condition thereto to register or qualify to do business as a foreign corporation in any jurisdiction where it is not now so qualified or to file a general consent take any action that would subject it to service of process in suits or taxation, in each case, in any such states or jurisdictionsjurisdiction where it is not now so subject.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review and comment upon the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two five (25) full Trading Daystrading days) prior to each filing filing, and shall not file any document in a form to which such counsel reasonably objects and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed and prepare and file any required filings with such principal the Nasdaq National Market System or any exchange or market where the Common Stock is traded.
(ix) Take all steps necessary to enable Holders to avail themselves of the prospectus delivery mechanism set forth in Rule 153 (or exchangesuccessor thereto) under the Act.
(b) In Set forth below in this Section 2(b) are (I) events that may arise that the event parties consider will interfere with the Registration Statement has become effective andfull enjoyment by the Investors of their rights under this Agreement and the Investment Agreement (the "INTERFERING EVENTS"), afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than and (II) certain remedies applicable in each of these events. Paragraphs (i) 45 days in any 90-day period or through (iiiv) 90 days in any calendar yearof this Section 2(b) describe the Interfering Events, including without limitation by reason of any suspension or stop order with respect provide a remedy to the Registration Statement or Investors if an Interfering Event occurs and provide that the fact Investors may require that an event has occurred the Company repurchase outstanding Purchased Shares at a specified price if certain Interfering Events are not timely cured. Paragraph (v) provides, inter alia, that if default adjustments required as a result the remedy in the case of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 certain of the circumstances then existingInterfering Events are not provided when due, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of Investors to redeem outstanding Purchased Shares at a specified price. Paragraph (vi) provides, inter alia, that the Commission or (ii) it is determined in good faith by Investors have the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company right to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspensionspecific performance. The Company will use reasonable best efforts preceding paragraphs in this Section 2(b) are meant to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, serve only as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant an introduction to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi2(b), are for convenience only, and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed not to be incorporated by reference considered in such Prospectus applying, construing or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of interpreting this paragraphSection 2(b).
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Registration Requirements. (a) On or prior to the Filing Date, the Company shall prepare and file with the Commission a Registration Statement (the "Initial Registration Statement") which shall cover all Registrable Securities for an offering to be made on a continuous basis pursuant to a "Shelf" registration statement under Rule 415. The Initial Registration Statement shall be on Form S-3 or any successor form (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 herewith, subject to the reasonable consent of the original Holders of the Registrable Securities). The Company shall use its reasonable best efforts to effect cause the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking Initial Registration Statement to file post-be declared effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) Act as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously promptly as possible after the filing of the Report on Form 10-K for the year ended December 31thereof, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But but in any event within 30 days of on or prior to the filing of the Company’s 2004 10-KEffectiveness Date, prepare and file a registration statement with the Commission pursuant to Rule 415 keep such Initial Registration Statement continuously effective under the Securities Act on Form S-3 under until the date which is four years after the date that such Initial Registration Statement is declared effective by the Commission or such earlier date when all Registrable Securities Act (covered by such Initial Registration Statement have been sold or in the event that may be sold without volume restrictions pursuant to Rule 144 as determined by counsel to the Company is ineligible pursuant to use such forma written opinion letter, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available addressed to the Holders and the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities 's transfer agent to such effect (the “Registration Statement”"Effectiveness Period"). The number of shares of Common Stock initially included in such the Initial Registration Statement shall be no less than 100% of the sum aggregate number of (A) the Shares and (B) the Warrant Shares shares of Common Stock that are then issuable upon full conversion of the Preferred Stock (based on the Conversion Price (as defined in the Preferred Stock ) as would then be in effect at such time) and the exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts Warrants, without regard to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement limitation on the principal securities exchange and/or market on which Investor's ability to convert the Common Preferred Stock is then listed and prepare and file any required filings with such principal market or exchangeexercise the Warrants.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect addition to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Initial Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition Holders of a majority of the Registrable Securities that, upon receipt of covered by a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2so elect on or after September 30, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed2000, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number an offering of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities pursuant to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement may be effected on no more than two (2) occasions in the form of an Underwritten Offering of at least one million shares of Common Stock. In such event, and if reasonably requested by a Holder holding any Registrable Securities.the managing
Appears in 1 contract
Samples: Registration Rights Agreement (Level 8 Systems Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible shall on or before the 45th calendar day after the filing of Closing Date (the Report on Form 10-K for the year ended December 31"Filing Due Date"), 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of file with the filing of the Company’s 2004 10-K, prepare and file SEC a registration statement on Form SB-2 or other appropriate form (together with the Commission any prospectus included therein, a "Registration Statement") pursuant to Rule 415 under of the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible order to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file register with the SEC such amendments and supplements the continuous resale by the Investors, from time to such Registration Statement and the prospectus used in connection with such Registration Statement as time, of all Purchased Shares that may be necessary to comply with acquired by the provisions of Investors, whether through the Act with respect to Nasdaq National Market System (the disposition of all securities covered by such Registration Statement and notify "NNMS") or the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening facilities of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal national securities exchange and/or market on which the Common Stock is then listed traded, or in privately-negotiated transactions, and prepare (ii) file an application for listing (a "Listing Application") of such Purchased Shares on the NNMS or any other nationally recognized securities exchange (collectively with the NNMS, the "Exchange"). The Company shall use its best efforts to cause (x) such Registration Statement to be declared effective by the SEC, and (y) such Listing Application to be accepted and declared effective by the Exchange, in each case on or before the 120th day after the Closing Date; provided, however, that if (aa) the SEC shall not have declared such Registration Statement effective, or (bb) the Exchange shall not have accepted and declared effective such Listing Application, each on or before the 120th day after the Closing Date, then the Company shall issue a Compensation Warrant to each Investor on the 121st day (the "Compensation Trigger Date") after the Closing Date and, thereafter, an additional Compensation Warrant on each 30-day anniversary of such Compensation Trigger Date for so long as the SEC shall not have declared such Registration Statement effective and/or the Exchange shall not have accepted and declared effective such Listing Application. The Company shall further be required pursuant to the provisions of this Section 4.18 to file Registration Statement(s) and Listing Application(s) in respect of any Top-Up Shares on or before the 45th calendar day after the issuance (or, if any of such securities were not issued, the date on which such securities were required filings to be issued) of any such Top-Up Shares to any Investors; provided, however, that in any such case the Filing Due Date shall be the forty-fifth (45th) calendar day, and the Compensation Trigger Date shall be the one hundred and twenty-first (121st) calendar day, following the date on which any such Top-Up Shares were issued, or required to be issued, to the Investors. The Company further agrees to provide unlimited piggyback registration rights with respect to any shares issued (or required to be issued) (if any) on exercise of any Compensation Warrant(s) (if any). Each Investor agrees to furnish promptly to the Company in writing all information required for preparation of any Registration Statement or thereafter required from time to time to be disclosed in order to make the information previously furnished to the Company by such principal market or exchangeholder not misleading.
(b) In If at any time following the event the filing of a Registration Statement has become effective andby the Company, afterwards, any Holder’s ability the Company shall qualify to sell Registrable Securities file a registration statement on Form S-3 under the Registration Statement is suspended for more than (iSecurities Act, the Company shall thereafter be entitled to replace any Form SB-2 registration statement referred to in Section 4.18(a) 45 days in above with a registration statement on Form S-3 that has been declared effective by the SEC. Any such Form S-3 used to replace a Form SB-2 pursuant to this Section 4.18(b), together with any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Form S-3, shall thereafter be referred to as a "Registration Statement then in effect includes an untrue statement of material fact or omits to state a material fact required Statement" and any Form SB-2 that is so replaced shall cease to be stated therein or necessary referred to make the statements therein not misleading in light by that term for purposes of the circumstances then existing, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleadingthis Agreement.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take pay all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period Expenses (as defined below) in connection with any registration, qualification or compliance hereunder, and each Investor shall pay all Selling Expenses (as defined below) and other expenses that are not Registration Expenses relating to the Common Stock resold by such Investor. "Registration Expenses" shall mean all expenses, except for Selling Expenses, incurred by the Company in complying with the registration provisions herein described, including without limitation, all registration, qualification and filing fees (including all SEC and Nasdaq fees), andprinting expenses, during such periodescrow fees, comply with the provisions fees and disbursements of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement counsel for the Company to amend or supplement and for any underwriter (unless paid by such Registration Statement.
(h) Each Holder agrees by its acquisition of underwriter), blue sky fees and expenses, the Registrable Securities that, upon receipt of a notice from the Company of the occurrence expense of any event special audits incident to or required by any such registration and the reasonable fees and disbursements of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi)one counsel to all selling Investors. "Selling Expenses" shall mean only selling commissions, underwriting discounts and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the stock transfer taxes applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale Common Stock sold by each Investor and distribution all fees and disbursements of Registrable Securitiescounsel for any Investor (which counsel, includingif any, without limitation, information with respect shall be additional to the number of Registrable Securities being offered or sold, one counsel to all selling Investors referenced in the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securitiespreceding sentence).
Appears in 1 contract
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):possible:
(i) But in any event within 30 60 days of the filing of the Company’s 2004 10-KClosing, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 120 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K Closing (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Daysdays on which there is trading on the NASDAQ Global Market or such other market or exchange on which the Common Stock is then principally traded) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h5(g)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Securities Purchase and Registration Rights Agreement (Star Scientific Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Investors' Registrable Securities (including, including without limitation, limitation the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky "Blue Sky" or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) designated by the Holder and in all states reasonably requested by the HolderU.S. jurisdictions. Such reasonable best efforts by the Company shall include, without limitation, include the following:
(a) The Company shall, as expeditiously as reasonably possible after the filing Effective Date (as defined in the Plan of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004Reorganization) (collectively, the “Company’s 2004 10-K”"Closing Date"):
(i) But in any event within 30 days of by March 20, 2001 (the filing of the Company’s 2004 10-K, "Filing Date") prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the CompanyAct) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (such registration statement, including any amendments or supplements thereto and prospectuses contained therein, is referred to herein as the “"Registration Statement”"), which Registration Statement, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such number of additional shares of Common Stock as may become issuable to prevent dilution resulting from stock splits, stock dividends or similar events. The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum number of (A) the Shares and (B) the Warrant Shares issuable upon full exercise shares of Common Stock that are as of the Warrantdate of this Agreement issued or issuable to the Investors. Thereafter Thereafter, the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possiblepracticable, and in any event prior to 90 60 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible dateFiling Date. The Company shall provide the Holders and their legal counsel reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement in accordance with the intended methods of disposition by the seller thereof as set forth in the Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” "Blue Sky" laws of all domestic U.S. jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereofthereof and any information incorporated or deemed to be incorporated by reference therein) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders of the Registrable Securities included in the Registration Statement to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing filing, and will shall not request acceleration of the Registration Statement without prior notice file any document in a form to which such counselcounsel reasonably objects.
(viii) List the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed and prepare and file any required filings with such principal the New York Stock Exchange, the National Association of Securities Dealers, Inc. or any exchange or market where the Common Stock is then traded.
(ix) If applicable, take all steps necessary to enable Holders to avail themselves of the prospectus delivery mechanism set forth in Rule 153 (or exchangesuccessor thereto) under the Act.
(x) Upon the effectiveness of the Registration Statement, cause any restrictive legend placed on the certificates representing Registrable Securities to be removed promptly.
(b) In Set forth below in this Section 2(b) are (I) events that may arise that the event Investors consider will interfere with the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities full enjoyment of their rights under the Registration Statement is suspended for more than Transaction Documents (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi"Interfering Events"), and upon notice (II) certain remedies applicable in each of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraphthese events.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (Stonehill Offshore Partners LTD)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities contemplated by the Warrants (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holderwarrant holder for purposes of maximizing the proceeds realizable by the Investor from such sale or distribution. Such reasonable best efforts by the Company shall include, include without limitation, limitation the following:
(a) The Company shall, as expeditiously as possible after Subject to the filing terms and conditions of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectivelythis Rights Agreement, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and Company shall file a registration statement with the Commission no later than thirty (30) days from the date of the issuance of Warrants pursuant to Rule 415 the Agreement, an appropriate registration statement under the Securities Act on Form S-3 under for the Securities Act (or in registration of the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales resale by the Holders as selling stockholders (not underwriters) Investor of the Registrable Securities (the “"Registration Statement”). The number of shares of Common Stock initially included in such ") which Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be have been declared effective as soon as possible, and in any event prior to 90 by the Commission no later than one hundred twenty (120) days (or, if the SEC elects to review the Registration Statement, 180 days) following from the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”)thereof. Without limiting the foregoingFurthermore, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions time of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or file (i) such blue sky filings as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically shall have been requested by a Holderthe Investor; and (ii) as a result any required filings with the National Association of which Securities Dealers, Inc. or exchange or market where the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purposeShares are traded. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible timehave all filings declared effective as promptly as practicable.
(viii) Permit counsel If the Company (A) fails to the Holders to review file the Registration Statement complying with the requirements of this Rights Agreement within the time periods set forth in Section 2(a) hereof, the Investor shall have, in addition to and all amendments and supplements thereto within a reasonable period without limiting any other rights it may have at law, in equity or under the Agreement, or this Rights Agreement (including the right to specific performance), the right to receive, as liquidated damages, the payments as provided in subparagraph (ii) of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counselthis section.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(bii) In the event the Company fails to obtain the effectiveness of a Registration Statement has become effective andwithin the time period set forth in Section 2(a), afterwardsthe Company shall pay to the Investor an amount equal to (A) $100, any Holder’s ability to sell Registrable Securities under in cash, for each day of the Registration Statement is suspended for more than thirty (i30) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation following the date by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of material fact or omits to state a material fact was required to be stated therein have been declared effective and (B) $500, in cash, for each day after such first thirty (30) day period. In addition to the foregoing, in the event the Company fails to maintain the effectiveness of a Registration Statement (or necessary to make the statements therein not misleading in light use of the circumstances then existingunderlying prospectus) throughout the period set forth in Section 5(a), then other than suspensions as set forth in Section 4, the Company shall take such action as may be necessary pay to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectusthe Investor an amount equal to $500, as so amendedin cash, shall not contain an untrue statement of per day, in which a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleadingsuspension has occurred.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other reasonable actions as the Holder or the underwriters participating in such offering and sale may reasonably request connection therewith in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (Elcom International Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):Closing Date:
(i) But in any event within 30 120 days of the filing of the Company’s 2004 10-KClosing, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after as soon as Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities and, no other securities (the “Registration Statement”), which Registration Statement, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers the resale of such indeterminate number of additional Common Units as may be issued upon conversion of the Convertible Units. The number of shares of Common Stock Units initially included in such Registration Statement shall be no less than the sum of (A) two times the Shares and (B) the Warrant Shares number of Common Units that are then issuable upon full exercise conversion of the WarrantPreferred Units (assuming full conversion, respectively, at the then applicable Conversion Price (as defined in the Certificate of Designations). Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 180 days (or, if the SEC elects to review the Registration Statement, 180 270 days) following the filing of the Company’s 2004 10-K Closing Date (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue skyBlue Sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading DaysDays (as defined in the Certificate of Designations)) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is Units are then listed and prepare and file any required filings with such principal market or exchangethe Principal Market.
(b) In Set forth below in this Section 2(b) are (I) events that may arise that the event Purchaser considers will interfere with the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities full enjoyment of their rights under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwritingthis Agreement, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoingPurchase Agreement, the foregoing right shall not extend to any Holder Certificate of Designations (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi“Interfering Events”), and upon notice (II) certain remedies applicable in each of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraphthese events.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (Atlas Pipeline Partners Lp)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, including without limitation, limitation the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky "BLUE SKY" or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the HolderHolder and in all U.S. jurisdictions. Such reasonable best efforts by the Company shall include, without limitation, include the following:
(a) The Company shall, as expeditiously as reasonably possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):Closing Date:
(i) But in any event within 30 by no later than 45 days of after the filing of the Company’s 2004 10-KClosing Date, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to Act) registering the Company) covering resales by the Holders as selling stockholders (not underwriters) resale of the Registrable Securities (such registration statement, including any amendments or supplements thereto and prospectuses contained therein, is referred to herein as the “"REGISTRATION STATEMENT"), which Registration Statement”, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such number of additional shares of Common Stock as may become issuable to prevent dilution resulting from stock splits, stock dividends or similar events. The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) 200% of the sum of the number of shares of Common Stock that as of the date of filing would be issuable upon conversion of the Preferred Shares and plus (B) 100% of the Warrant Shares shares of Common Stock that would be issuable upon full exercise of the WarrantWarrants in each case without regard to any limitation on the Purchaser's ability to convert or exercise such securities. Thereafter The Company will use its best efforts to respond to any Commission comments on the registration statement within seven (7) business days of receipt. The Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possiblepracticable, and in any event within 90 days of filing. If the Registration Statement is not declared effective prior to 90 the earliest of (x) 120 days after the Closing Date, in the event that the Registration Statement is not reviewed by the SEC, (ory) 140 days after the Closing Date, if in the event that such review takes place or (z) within 4 Business Days of the SEC elects to review the Registration Statementindicating it has no comments or no further comments, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”"EFFECTIVENESS DEADLINE"). Without limiting , then the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and provisions of Section 2(b)(i) below shall request acceleration of effectiveness at the earliest possible dateapply. The Company shall provide the Holders and their legal counsel reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement in accordance with the intended methods of disposition by the seller thereof as set forth in the Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish After the registration, furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register Use its best efforts to register and qualify the securities covered by such Registration Statement under the such other securities or “blue sky” "BLUE SKY" laws of all domestic U.S. jurisdictions, to the extent required; provided PROVIDED that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately promptly of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereofthereof and any information incorporated or deemed to be incorporated by reference therein) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately promptly of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit a single firm of counsel, designated as Holders' counsel to by the Holders of a majority of the Registrable Securities included in the Registration Statement, to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing, and shall not file any document in a form to which such counsel reasonably objects; provided, however, that any delay in the filing and will not request acceleration of to the Registration Statement without prior notice extent due to such counsel's objection shall not be counted when determining the applicable remedies in Section 2(b) below.
(viii) List Use its best efforts to list the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed and prepare and file any required filings with such principal the National Association of Securities Dealers, Inc. or any exchange or market where the Common Stock is then traded.
(ix) If applicable, take all steps necessary to enable Holders to avail themselves of the prospectus delivery mechanism set forth in Rule 153 (or exchangesuccessor thereto) under the Act.
(x) Notify the Holders' counsel of receipt of any comments from the SEC on the Registration Statement or of an SEC decision not to review the Registration Statement.
(b) In Set forth below in this Section 2(b) are (I) events that may arise that the event Purchasers consider will interfere with the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities full enjoyment of their rights under the Registration Statement is suspended for more than Preferred Shares, Warrants, the Registrable Securities, the Purchase Agreement and this Agreement (the "INTERFERING EVENTS"), and (II) certain remedies applicable in each of these events. Paragraphs (i) 45 days in any 90-day period or through (iiiv) 90 days in any calendar yearof this Section 2(b) describe the Interfering Events, including without limitation by reason of any suspension or stop order with respect provide a remedy to the Registration Statement Purchasers if an Interfering Event occurs and provide that the Purchasers may require that the Company redeem outstanding Preferred Shares, Warrants, or Registrable Securities at a specified price if certain Interfering Events are not timely cured. Paragraph (v) provides, INTER ALIA, that each Holder shall have the fact that an event has occurred option as to whether it would like to receive any payment required as a result remedy in the case of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 certain of the circumstances then existingInterfering Events in cash or shares of Common Stock. Paragraph (vi) provides, then INTER ALIA, that if payments required as the remedy in the case of certain of the Interfering Events are not paid when due, the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of Purchasers to redeem outstanding Preferred Shares, Warrants, or Registrable Securities at a specified price. Paragraph (viii) provides, INTER ALIA, that the Commission or (ii) it is determined in good faith by Purchasers have the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company right to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspensionspecific performance. The Company will use reasonable best efforts preceding paragraphs in this Section 2(b) are meant to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, serve only as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant an introduction to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi2(b), are for convenience only, and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed not to be incorporated by reference considered in such Prospectus applying, construing or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of interpreting this paragraphSection 2(b).
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Registration Requirements. (a) On or prior to the Filing Date, the Company shall prepare and file with the Commission a Registration Statement (the "Initial Registration Statement") which shall cover all Registrable Securities for an offering to be made on a continuous basis pursuant to a "Shelf" registration statement under Rule 415. The Initial Registration Statement shall be on Form S-3 or any successor form (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 herewith, subject to the reasonable consent of the original Holders of the Registrable Securities). The Company shall (i) not permit any securities other than the Registrable Securities to be included in the Initial Registration Statement and (ii) use its reasonable best efforts to effect cause the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking Initial Registration Statement to file post-be declared effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) Act as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously promptly as possible after the filing of the Report on Form 10-K for the year ended December 31thereof, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But but in any event within 30 days of on or prior to the filing of the Company’s 2004 10-KEffectiveness Date, prepare and file a registration statement with the Commission pursuant to Rule 415 keep such Initial Registration Statement continuously effective under the Securities Act on Form S-3 under until the Securities Act (or in date which is four years after the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided date that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Initial Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be is declared effective as soon as possible, and in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and such earlier date when all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Initial Registration Statement have been sold or may be sold without volume restrictions pursuant to Rule 144 as determined by counsel to the Company pursuant to a written opinion letter, addressed to the Holders and the Company's transfer agent to such effect (the "Effectiveness Period"). The --------------------- Company acknowledges that the number of shares initially included in the Initial Registration Statement represents a good faith estimate of the maximum number of shares issuable upon conversion of the Debentures and exercise of the Warrants. If, at any time within the 45-day period preceding a reset of the Conversion Price pursuant to the terms of Section 5.2 of the Debentures, the closing bid price per share of the Common Stock on Nasdaq (or any Subsequent Market (as defined in the principal securities exchange and/or market Debenture) on which the Common Stock is then listed listed, or if there is no such price on such date, then the closing bid price on such exchange or quotation system on the date nearest preceding such date) is less than $9.50 for any consecutive five (5) Trading Day period, the Company shall be required to file within five (5) Business Days after such fifth (5th) Business Day a Registration Statement covering the greater of (a) the product of (i) one and prepare one-half (1.5) and (ii) the aggregate number of Underlying Shares, less the number of Underlying Shares for which a Registration Statement is then effective or (b) the aggregate number of Underlying Shares, calculated as if the Conversion Price (as defined in the Debentures) was reset on such fifth day pursuant to the terms of Section 5.2 of the Debentures, less the number of Underlying Shares for which a Registration Statement is then effective; provided, however, that if on the actual reset date (pursuant to Section 5.2 of -------- ------- the Debentures) the Registration Statements are insufficient to register all Underlying Shares (after giving effect to such reset), the Company shall immediately, but in no more than five (5) Business Days, file any required filings with a Registration Statement sufficient to register such principal market or exchangeadditional shares of Common Stock.
(b) In addition to the event Initial Registration Statement, if the Holders of a majority of the Registrable Securities covered by a Registration Statement has become effective andso elect on or after July 1, afterwards1999, an offering of Registrable Securities pursuant to such Registration Statement may be effected on no more than one (1) occasion in the form of an Underwritten Offering; provided, however, that the -------- ------- Company may delay any Holder’s ability such underwritten offering one (1) time for a period of up to ninety (90) days. In such event, and if the managing underwriters advise the Company and such Holders in writing that in their opinion the amount of Registrable Securities proposed to be sold in such Underwritten Offering exceeds the amount of Registrable Securities which can be sold in such Underwritten Offering, there shall be included in such Underwritten Offering the amount of such Registrable Securities which in the opinion of such managing underwriters can be sold, and such amount shall be allocated pro rata among the Holders --- ---- proposing to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleadingUnderwritten Offering.
(c) If the Holder(s) intend to distribute any of the Registrable Securities by means of are to be sold in an underwritingUnderwritten Offering, the Holder(s) investment banker in interest that will administer the offering will be selected by the Holders of a majority of the Registrable Securities included in such offering provided that the Company shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory consent to the Companyinclusion of such investment banker, which consent shall not be unreasonably withheld. No Holder may participate in any Underwritten Offering hereunder unless such Holder (i) agrees to sell its Registrable Securities on the basis provided in any underwriting agreements approved by the Persons entitled hereunder to approve such arrangements and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such arrangements.
(d) If (i) the Initial Registration Statement covering all the applicable Registrable Securities and required to be filed by the Company pursuant to this Agreement is not (A) filed with the Commission on or before the Filing Date or (B) declared effective by the Commission on or before the applicable Effectiveness Date, (ii) on any day after the Registration Statement has been declared effective by the Commission (A) sales of all the Registrable Securities required to be included on a Registration Statement cannot be made pursuant to the Registration Statement (including, without limitation, because of a failure to keep the Registration Statement effective, to disclose such information as is necessary for sales to be made pursuant to the Registration Statement, or to register sufficient shares of Common Stock) or (B) the Common Stock is not listed or included for quotation on the National Market System of the Nasdaq Stock Market ("Nasdaq"), the New York Stock Exchange ("NYSE") or the ------ ---- American Stock Exchange (the "AMEX") after being so listed or included for ---- quotation or (iii) the Company shall otherwise fail to file a Registration Statement required by Section 2(a) hereof, (each such event specified in (i), (ii) and (iii) above, an "Event"), then, as partial relief for the damages to ----- any Holder by reason of any such delay in or reduction of its ability to sell the Registrable Securities (which remedy shall not be exclusive of any other remedies available at law or in equity), the Company shall pay to each Holder an amount in cash (a "Registration Delay Payment") equal to the then outstanding --------------------------- principal amount of the Debentures (and, in the case of Holders, the principal amount of Debentures from which such Registrable Securities were converted) (the "Aggregate Price") multiplied by two hundredths (.020) times the sum of: (i) the --------------- number of months (prorated for partial months) after the end of the Effectiveness Date and prior to the date the Registration Statement is declared effective by the Commission, provided, however, that there shall be excluded -------- ------- from such period any delays which are solely attributable to changes required by the Purchasers in the Registration Statement with respect to information relating to the Purchasers, or to the failure of the Purchasers to conduct their review of the Registration Statement pursuant to Section 3(a); (ii) the number of months (prorated for partial months) that sales cannot be made pursuant to the Registration Statement after the Registration Statement has been declared effective (including, without limitation, when sales cannot be made by reason of the Company's failure to properly supplement or amend the Prospectus in accordance with the terms of this Agreement, or otherwise, but excluding when such sales cannot be made solely by reason of any act or omission solely attributable to the Purchasers); and (iii) the number of months (prorated for partial months) that the Common Stock is not listed or included for quotation on the Nasdaq, NYSE or AMEX or that trading thereon is halted after the Registration Statement has been declared effective. The Company shall enter into such customary agreements (including pay any Required Registration Delay Payments to each Holder in cash on the last Business Day of each month during which an underwriting agreement containing such representations Event has occurred and warranties by is continuing. In the event the Company and fails to make a Registration Delay Payment in a timely manner, such other terms and provisions, as are customarily contained Registration Delay Payment shall bear interest at the rate of 2.0% per month (prorated for partial months) until paid in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availabilityfull.
(e) The Company shall make available represents and warrants that it meets the registrant eligibility and transaction requirements for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with Form S-3 (for primary and secondary offerings) for the Registration Statement only in registration of the event, and for such period sale of time as, (i) such a suspension is required Registrable Securities by the rules Purchasers and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of any other Holders and the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are reports required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that with the Commission in a timely manner so as to maintain such eligibility for the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraphForm S-3.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, including without limitation, limitation the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky "Blue Sky" or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, include the following:
(a) The Company shall, as expeditiously as reasonably possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):Closing Date:
(i) But in any event within 30 60 days of the filing of the Company’s 2004 10-Kthereafter, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the CompanyAct) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (such registration statement, including all of the “documents incorporated or deemed to be incorporated by reference therein, is referred to herein as the "Registration Statement”"), which Registration Statement, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of the Debentures or exercise of the Warrants. The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) two times the sum of the number of Common Shares and that are then issuable upon conversion of the Debentures plus (B) one and one-half times the number of Warrant Shares issuable upon full exercise of the WarrantWarrants in each case without regard to any limitation on the Investor's ability to convert the Debentures or Warrants. Thereafter Thereafter, the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible dateClosing Date. The Company shall provide the Holders and their legal counsel reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register Use its best efforts to register and qualify the securities covered by such Registration Statement under the such other securities or “blue sky” "Blue Sky" laws of all domestic jurisdictions, to the extent requiredsuch jurisdictions as shall be reasonably requested by each Holder; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereofthereof and any information incorporated or deemed to be incorporated by reference therein) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit a single firm of counsel, designated as Holders' counsel to by the Holders of a majority of the Registrable Securities included in the Registration Statement, to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing filing, and will shall not request acceleration of the Registration Statement without prior notice file any document in a form to which such counselcounsel reasonably objects.
(viii) List Use its best efforts to list the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed and prepare and file any required filings with such principal the National Association of Securities Dealers, Inc. or any exchange or market where the Common Stock is then traded.
(ix) Take all steps necessary to enable Holders to avail themselves of the prospectus delivery mechanism set forth in Rule 153 (or exchangesuccessor thereto) under the Act.
(b) In Set forth below in this Section 2(b) are (I) events that may arise that the event Investor considers will interfere with the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities full enjoyment of its rights under the Registration Statement is suspended for more than Debentures, the Purchase Agreement and this Agreement (the "Interfering Events"), and (II) certain remedies applicable in each of these events. Paragraphs (i) 45 days in any 90-day period or through (iiiv) 90 days in any calendar yearof this Section 2(b) describe the Interfering Events, including without limitation by reason of any suspension or stop order with respect provide a remedy to the Registration Statement or Investor if an Interfering Event occurs and provide that the fact Investor may require that an event has occurred the Company redeem outstanding Debentures at a specified price if certain Interfering Events are not timely cured. Paragraph (vi) provides, INTER ALIA, that if cash payments required as a result the remedy in the case of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 certain of the circumstances then existingInterfering Events are not paid when due, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of Investor to redeem outstanding Debentures at a specified price. Paragraph (ix) provides, INTER ALIA, that the Commission or (ii) it is determined in good faith by Investor has the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company right to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspensionspecific performance. The Company will use reasonable best efforts preceding paragraphs in this Section 2(b) are meant to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, serve only as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant an introduction to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi2(b), are for convenience only, and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed not to be incorporated by reference considered in such Prospectus applying, construing or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of interpreting this paragraphSection 2(b).
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (U S Plastic Lumber Corp)
Registration Requirements. The Unless waived in writing by Lender, the Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):possible:
(i) But in any event within 30 75 days of the filing of the Company’s 2004 10-KClosing, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities Shares (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 60 days (or, if the SEC Commission elects to review the Registration Statement, 180 120 days) following the filing of the Registration Statement. The Company’s 2004 10-K , in its sole discretion, may elect to include for offer and sale securities in addition to the Registrable Securities in the Registration Statement. By 5:30 p.m. (New York time) on the “Effectiveness Deadline”Business Day immediately following the effective date of the Registration Statement, the Company shall file with the Commission in accordance with Rule 424(b) under the Securities Act the final prospectus to be used in connection with sales pursuant to the applicable Registration Statement (whether or not such a prospectus is technically required by such rule). .
(ii) Without limiting the foregoing, the Company will promptly respond to all SEC Commission comments, inquiries and requests, and shall request acceleration of effectiveness of the Registration Statement at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(iiiii) Prepare and file with the SEC Commission such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iiiiv) Furnish or otherwise make available to each Holder such numbers of copies of a current prospectus included in the Registration Statement conforming with the requirements of the Securities Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(ivv) Register and qualify the securities covered by such the Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(vvi) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vivii) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(viiviii) Permit Upon request, permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Daysdays on which there is trading on the NASDAQ Global Market (the “Principal Market”) or such other market or exchange on which the Common Stock is then principally traded) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel, provided, however, that the Company shall not be obligated to comply with this Section 1.2(a)(ix) if compliance would cause the Company to fail to comply with any other provisions hereunder.
(viiiix) List Qualify the Registrable Securities covered by such Registration Statement for listing on the Principal Market or the principal securities exchange and/or market on which the Common Stock is then listed listed, including the preparation and prepare and file filing of any required filings with such principal market or exchange.
(b) In the event that the Registration Statement has become been declared effective by the Commission and, afterwards, any Holder’s ability to sell Registrable Securities registered for resale under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such the Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such the Registration Statement or the prospectus (including any supplements thereto) included in the Registration Statement, such that such the Registration Statement or the prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Subject to Section 1.2(c) above, the Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a the Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any the Registration Statement, all documents filed with the SEC Commission subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such the Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (iif)(ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC Commission such amendments (including post-effective amendments) and supplements to a the Registration Statement and the prospectus used in connection with such the Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such the Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such the Registration Statement. In the case of amendments and supplements to a the Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h1.2(g)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Exchange Act, the Company shall have incorporated such report by reference into such the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC Commission on the same day on which the 1934 Exchange Act report is filed which created the requirement for the Company to amend or supplement such the Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v1.2(a)(vii) or 5.2(a)(vi1.2(a)(viii), and upon notice of any suspension under Section 5.2(f1.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus prospectus and/or amended amendment to the Registration Statement contemplated by this Section 5.21.2, or until it is advised in writing by the Company that the use of the applicable Prospectus prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus prospectus or the Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; , (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; , and (iii) as soon as practicable, supplement or make amendments to any the Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Loan Agreement (Star Scientific Inc)
Registration Requirements. The Company shall use its reasonable diligent best efforts to effect the registration of the resale of the Registrable Securities contemplated by the Agreement (including, 3 without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the HolderHolders under a broad-based plan of distribution reasonably acceptable to the Holders. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously soon as possible practicable after the filing of date hereof but in no event later than 60 days after the Report on Form 10-K for the year ended December 31date hereof, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
file (i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the CompanyAct) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities so requested to be registered (the “"Registration Statement”"). The number ; (ii) such blue sky filings as shall have been requested by the Holders; and (iii) any required filings with the National Association of shares of Common Stock initially included in Securities Dealers, Inc., the Nasdaq National Market, or such Registration Statement shall be no less than the sum of (A) other exchange or market on which the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrantare traded. Thereafter Thereafter, the Company shall use its reasonable best efforts to cause have such Registration Statement and other filings to be declared effective as soon promptly as possible, and in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchangepracticable.
(b) In If after 120 days from the event date hereof, the Registration Statement has become not been declared effective andby the Commission, afterwardsthe Holders shall have, in addition to, and without limiting, any Holder’s ability to sell Registrable Securities other rights they may have at law, in equity or under the Debentures, the Agreement or this Registration Statement is suspended Rights Agreement (including the right to specific performance), the right to receive, as liquidated damages, an amount equal to 2% of the Stated Value (as defined in the Debenture), in cash, for more than (i) 45 days in any 90each 30-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in after such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such 120-day period that such Registration Statement is not effective (which payment shall be pro rated for any period of less than 30 days). In addition to the foregoing, if after 180 days from the date hereof, the Registration Statement has not been declared effective by the Commission, then upon demand of any Holder, the Company shall redeem all or prospectusany specified portion of the Debentures held by such Holder at a redemption price equal to 130% of the sum of (x) the principal amount thereof, as so amendedplus (y) accrued but unpaid interest thereon, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make if any, together with all other payments due under this Section 2(b) and under the statements not misleadingDebentures and the Agreement.
(c) If the Holder(s) Holders intend to distribute the Registrable Securities covered by the Registration Statement by means of an underwriting, the Holder(s) Holders shall so advise the Company. Any The Holders will have the right to select the investment bankers for such underwriting may only be administered by nationally or regionally recognized subject to such investment bankers being reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an a customary underwriting agreement containing such representations and warranties by with the Company and such other terms and provisionsunderwriter or underwriters, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Companyif any) and take all such other reasonable actions as the Holder or the underwriters participating in such offering and sale may reasonably request connection therewith in order to 4 expedite or facilitate the disposition of such offering Registrable Securities. If the Registrable Securities are being offered and sale other than sold in an underwritten offering, the Company shall:
(i) make such actions which are disruptive representations and warranties to the Holders and the underwriter or underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in secondary underwritten offerings;
(ii) cause to be delivered to the sellers of Registrable Securities and the underwriter or underwriters, if any, opinions of counsel to the Company, dated the date of delivery of any Registrable Securities sold pursuant to the Registration Statement (which opinions (in form, scope and substance), shall be reasonably satisfactory to the managing underwriter or underwriters, if any) addressed to the Holders and each underwriter, if any, covering the matters customarily covered in opinions requested in secondary underwritten offerings and, in the case of an underwritten offering, such other matters as may be reasonably requested by the Holders;
(iii) cause to be delivered, immediately prior to the effectiveness of the Registration Statement (and, in the case of an underwritten offering, at the time of delivery of any Registrable Securities sold pursuant thereto), a "comfort" letter from the Company's independent certified public accountants addressed to the Holders and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable published rules and regulations thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent certified public accountants delivered in connection with secondary underwritten public offerings;
(iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification and contribution provisions and procedures of Sections 6 and 7 with respect to all parties to be indemnified pursuant to such sections; and
(v) the Company shall deliver such documents and certificates as may be reasonably requested by the Holders of the Registrable Securities being sold or require significant management availabilitythe managing underwriter or underwriters, if any, to evidence compliance with clause (i) above and with any customary conditions contained in the underwriting agreement, if any, or other agreement entered into by the Company; the foregoing in this Section 2(d) shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder; provided, however, the foregoing in Section 2(d) shall be required on only one (1) occasion.
(e) The Company shall make available for inspection by a representative or representatives of the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder such Holders or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closingsuch purposes, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.the
Appears in 1 contract
Samples: Registration Rights Agreement (Objective Communications Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, including without limitation, limitation the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, include the following:
(a) The the Company shall, as expeditiously as reasonably possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):final Closing Date:
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare Prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under such appropriate registration form of the Securities Act (or in the event that Commission as shall be reasonably selected by the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “"Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than ") within 45 days following the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrantfinal Closing Date. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to by the Commission within 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of final Closing Date. In the Company’s 2004 10-K (event that such Registration Statement is not declared effective within 90 days following the “Effectiveness Deadline”). Without limiting the foregoingfinal Closing Date, the Company will promptly respond to all SEC comments, inquiries and requests, and there shall request acceleration of effectiveness at the earliest possible datebe a 30 day grace period. The Company shall provide use its reasonable best efforts to cause the Holders Registration Statement to become effective during this 30 day grace period, if applicable. In the event that such Registration Statement has not been declared effective within 120 days from the final Closing Date, then the Company shall until the Registration Statement is declared effective, pay in cash to each Holder an amount equal to 2% of the principal amount of the Note (the "Liquidated Damages") held by such Holder for each 30 day period beginning on the 121st day following the final Closing Date (the "Default Period") that the Registration Statement has not been declared effective; provided however, that the Default Period shall terminate and Liquidated Damages shall cease to accrue on the date upon which such Registrable Securities may be sold under Rule 144(k) in the reasonable opportunity opinion of counsel to review the portions Company (provided that the Company's transfer agent has accepted an instruction from the Company to such effect). If any applicable Default Period is less than 30 days such cash payment shall be on a pro rata basis. Such cash payment shall be calculated by the Company on the earlier of any (i) the effective date of such Registration Statement or (ii) the last day of each Default Period and a check in lawful money of the United States of America shall be sent within three (3) business days of such calculation to the address of each Holder as listed in the Note Register maintained by the Company pursuant to Section 7 of the Note. Notwithstanding the foregoing, if the Default Period commences from the failure of the Company to cause to become effective the Registration Statement solely by reason of the failure of any Holder to provide such information as (i) the Company may reasonably request from such Holder to be included in the Registration Statement or (ii) the Commission or Nasdaq may request in connection with such Registration Statement (the "Late Holder"), the Company shall not be required to pay such Liquidated Damages to any of the Holders; provided, that the Company shall file the Registration Statement excluding the Late Holder, within two (2) business days after the initial day of the Default Period. The Company agrees to promptly file an amendment or supplement thereto containing disclosure regarding to such Registration Statement including the Holders prior to filingLate Holder once the requested information has been provided.
(ii) Prepare and file with the SEC Commission such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register Use its best efforts to register and qualify the securities covered by such Registration Statement under the such other securities or “blue sky” "Blue Sky" laws of all domestic jurisdictions, to the extent requiredsuch jurisdictions as shall be reasonably requested by each Holder; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements supplement thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit a single firm of counsel, designated as Holders' counsel to by the Holders of a majority of the Registrable Securities included in the Registration Statement, to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing filing, and will shall not request acceleration of the Registration Statement without prior notice file any document in a form to which such counselcounsel reasonably objects.
(viii) List Use its reasonable best efforts to list the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is Shares are then listed listed, and prepare and file any required filings with such principal the National Association of Securities Dealers, Inc. or any exchange or market or exchangewhere the Common Shares are traded.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ ' due diligence examination of the Company and review of any Registration Statement, all documents SEC Documents filed with the SEC subsequent to the Closingfinal Closing Date, pertinent corporate documents and properties of the Company, and cause the Company’s 's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Subordinated Convertible Note Purchase Agreement (Mansur Industries Inc)
Registration Requirements. The Company shall use its reasonable best efforts to ------------------------- effect the registration of the resale of the Registrable Securities (including, including without limitation, limitation the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky "Blue Sky" or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the HolderHolders and in all U.S. jurisdictions. Such reasonable best efforts by the Company shall include, without limitation, include the following:
(a) The Company shall, as expeditiously as reasonably possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):Initial Closing Date:
(i) But in any event within 30 by the earlier of (I) five Trading Days following the Additional Closing and (II) 60 calendar days of after the filing of the Company’s 2004 10-KInitial Closing Date, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the CompanyAct) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “such registration statement, including any amendments or supplements thereto and prospectuses contained therein, is referred to herein as a "Registration Statement”"), which Registration Statement, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such number of additional shares of Common Stock as may become issuable to prevent dilution resulting from stock splits, stock dividends or similar events; provided, however, that Holders shall not be identified as -------- ------- "underwriters" in the Registration Statement, with respect to the sale of Registrable Securities. The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) 125% of the Shares sum of the number of shares of Common Stock that as of the date of filing would be issuable upon conversion of the Initial Debentures and Additional Debentures (as if such Additional Debentures were issued as of such time) plus (B) 125% of the Warrant Shares shares of Common Stock that would be issuable upon full exercise of the WarrantWarrants in each case without regard to any limitation on the Purchaser's ability to convert or exercise such securities. Thereafter the The Company will use its best efforts to respond to any Commission comments on a Registration Statement within 7 business days of receipt. The Company shall use its reasonable best efforts to cause such each Registration Statement and other filings to be declared effective as soon as possiblepracticable, and in any event within 90 days of filing. If a Registration Statement is not declared effective prior to the earliest of (x) 90 days after the Initial Closing Date, in the event that the Registration Statement is not reviewed by the SEC, or (or, if y) within 5 days of the SEC elects indicating it has no comments or no further comments with respect to review the such Registration Statement, 180 days) following the filing of the Company’s 2004 10-K Statement (the “"Effectiveness Deadline”"). Without limiting , then the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and provisions of Section 2(b)(i) below shall request acceleration of effectiveness at the earliest possible dateapply. The Company shall provide the Holders and their legal counsel reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement in accordance with the intended methods of disposition by the seller thereof as set forth in the Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish After the registration, furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Securities Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register Use its best efforts to register and qualify the securities covered by such Registration Statement under the such other securities or “blue sky” "Blue Sky" laws of all domestic U.S. jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately promptly of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereofthereof and any information incorporated or deemed to be incorporated by reference therein) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately promptly of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit a single firm of counsel, designated as Holders' counsel to by the Holders of a majority of the Registrable Securities included in such Registration Statement, to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing filing, and will shall not request acceleration of the Registration Statement without prior notice file any document in a form to which such counselcounsel reasonably objects.
(viii) List Use its best efforts to list the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed or included for quotation and prepare and file any required filings with such principal the National Association of Securities Dealers, Inc. or any exchange or market where the Common Stock is then traded.
(ix) If applicable, take all steps necessary to enable Holders to avail themselves of the prospectus delivery mechanism set forth in Rule 153 (or exchangesuccessor thereto) under the Securities Act.
(x) Notify the Holders' counsel of receipt of any comments from the SEC on the Registration Statement or of an SEC decision not to review the Registration Statement.
(b) In Set forth below in this Section 2(b) are (I) events that may arise that the event Purchasers consider will interfere with the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities full enjoyment of their rights under the Registration Statement is suspended for more than Transaction Documents (the "Interfering Events"), and (II) certain remedies applicable in each of these events. Paragraphs (i) 45 days in any 90-day period or through (iiiv) 90 days in any calendar yearof this Section 2(b) describe the Interfering Events, including without limitation by reason of any suspension or stop order with respect provide a remedy to the Registration Statement or Holders if an Interfering Event occurs and provide that the fact Holders may require that an event has occurred the Company redeem outstanding Debentures, Warrants and/or Registrable Securities at specified prices if certain Interfering Events are not timely cured. Paragraph (v) provides, inter alia, that each Holder shall have the ----- ---- option as to whether it would like to receive any payment required as a result remedy in the case of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 certain of the circumstances then existingInterfering Events in cash or shares of Common Stock. Paragraph (vi) provides, then inter alia, that if payments required as the ----- ---- remedy in the case of certain of the Interfering Events are not paid when due, the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or Holders to redeem outstanding Debentures, Warrants and/or Registrable Securities at specified prices. Paragraph (iiviii) it is determined in good faith by the Board of Directors of the Company provides, inter alia, that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify have the nature of the event giving rise right ----- ---- to such suspensionspecific performance. The Company will use reasonable best efforts preceding paragraphs in this Section 2(b) are meant to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, serve only as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant an introduction to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi2(b), are for convenience only, and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed not to be incorporated by reference considered in such Prospectus applying, construing or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of interpreting this paragraphSection 2(b).
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (Constellation 3d Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, including without limitation, limitation the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky "Blue Sky" or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the HolderHolder and in all U.S. jurisdictions. Such reasonable best efforts by the Company shall include, without limitation, include the following:
(a) The Company shall, as expeditiously as reasonably possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):Closing Date:
(i) But in any event within 30 days of the filing of the Company’s 2004 10-Kthereafter, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the CompanyAct) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (such registration statement, including any amendments or supplements thereto and prospectuses contained therein, is referred to herein as the “"Registration Statement”"), which Registration Statement, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such number of additional shares of Common Stock as may become issuable to prevent dilution resulting from stock splits, stock dividends or similar events. The number of shares of Common Stock initially included in such Registration Statement shall be no less than 100% of the sum of (A) the Initial Shares and (B) the Warrant Shares issuable upon full exercise 160% of the Warrantnumber of shares of Common Stock underlying the Warrants. Thereafter Thereafter, the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possiblepracticable, and in any event prior to 90 the earlier of (i) 60 days following the Closing Date or (or, if ii) five days after SEC clearance to request acceleration (the SEC elects "Effectiveness Deadline"). The Company shall provide Holders and their legal counsel reasonable opportunity to review the any such Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”)Statement or amendment or supplement thereto prior to filing. Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement Statement, or prepare and file such additional registration statements, as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement in accordance with the intended methods of disposition by the seller thereof as set forth in the Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish After the registration, furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register Use its best efforts to register and qualify the securities covered by such Registration Statement under the such other securities or “blue sky” "Blue Sky" laws of all domestic U.S. jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events event unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereofthereof and any information incorporated or deemed to be incorporated by reference therein) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and and, pursuant to Section 2(f), use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit a single firm of counsel, designated as Holders' counsel to by the Holders of a majority of the Registrable Securities included in the Registration Statement, to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing filing, and will shall not request acceleration of the Registration Statement without prior notice file any document in a form to which such counselcounsel reasonably objects.
(viii) List Use its best efforts to list the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed and prepare and file any required filings with such principal the National Association of Securities Dealers, Inc. or any exchange or market where the Common Stock is then traded.
(ix) If applicable, take all steps necessary to enable Holders to avail themselves of the prospectus delivery mechanism set forth in Rule 153 (or exchangesuccessor thereto) under the Act.
(x) File additional Registration Statements if the number of Registrable Securities at any time exceeds 85% of the number of shares of Common Stock then registered in the existing Registration Statement.
(b) In Set forth below in this Section 2(b) are (I) events that may arise that the event Investors consider will interfere with the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities full enjoyment of their rights under the Registration Statement is suspended for more than Purchase Agreement and this Agreement (the "Interfering Events"), and (II) certain remedies applicable in each of these events. Paragraphs (i) 45 days in any 90-day period or through (iiv) 90 days in any calendar yearof this Section 2(b) describe the Interfering Events, including without limitation by reason of any suspension or stop order with respect provide a remedy to the Registration Statement or Investors if an Interfering Event occurs and provide that the fact Investors may require that an event has occurred the Company redeem outstanding Securities at a specified price if certain Interfering Events are not timely cured. Paragraph (v) provides, inter alia, that if payments required as a result the remedy in the case of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 certain of the circumstances then existingInterfering Events are not paid when due, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company Investors to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspensionredeem outstanding Securities at a specified price. The Company will use reasonable best efforts preceding paragraphs in this Section 2(b) are meant to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, serve only as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant an introduction to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi2(b), are for convenience only, and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed not to be incorporated by reference considered in such Prospectus applying, construing or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of interpreting this paragraphSection 2(b).
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Registration Requirements. (a) The Company shall use will apply its reasonable best commercial efforts to effect the registration file, within ninety (90) calendar days of the Closing Date, or, if the Company is unable to achieve such filing within such period despite such efforts, the Company shall apply reasonable commercial efforts to make such filing as expeditiously as possible thereafter, in accordance with applicable law, a Registration Statement on Form S-3 (or, if unavailable, such other form for registration to permit resale of the Registrable Securities) (the "Registration Statement") to register the resale of all of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts Investor for purposes of maximizing the proceeds realizable by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (Investor from such sale or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purposedistribution. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review cause the Registration Statement and all amendments and supplements thereto within a reasonable period to become effective by the Commission no later than one hundred twenty (120) calendar days from the Closing Date. Furthermore, at the time of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice Statement, the Company shall file (A) such blue sky filings as shall have been reasonably requested by the Investor, PROVIDED that the Company will not be required to such counsel.
qualify generally to do business in any jurisdiction where it would otherwise be required to qualify but for this Agreement or to consent to general service of process in any jurisdiction, and (viiiB) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal the New York Stock Exchange or other exchange or market or exchangewhere the Shares are traded. The Company shall use its best efforts to have all filings declared effective as promptly as practicable.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other reasonable actions as the Holder or the underwriters participating in such offering and sale may reasonably request connection therewith in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition registration of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (Benchmark Electronics Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):possible:
(i) But in any event within 30 60 days of the filing of the Company’s 2004 10-KClosing, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) 5,685,066 of the Warrant Shares issuable upon full exercise of the WarrantWarrants (applied, in the case of the Warrant Shares, to the Holders on a pro rata basis based on the total number of unregistered Warrant Shares held by each such Holder on a fully diluted basis) (the “Initial Registration Statement”). Thereafter For the purposes of clarity, in determining the number of Warrant Shares to be included in the Initial Registration Statement by each Holder on a pro rata basis, the Warrant Shares purchased by Holders pursuant to the 3/13/08 Agreement shall be included in the number of unregistered Warrant Shares held by Holders on a fully diluted basis. The Company shall use its reasonable best efforts to cause such Initial Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 120 days (or, if the SEC Commission elects to review the Registration Statement, 180 days) following the filing Closing.
(ii) But in any event within 180 calendar days of the Company’s 2004 10-K date the Initial Registration Statement is declared effective by the Commission (the “Effectiveness DeadlineSecond Filing Date”), prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of any remaining Registrable Securities (the “Subsequent Registration Statement” and together with the Initial Registration Statement, the “Registrations Statements”). The Company shall use its reasonable best efforts to cause such Additional Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 120 days (or, if the Commission elects to review the Registration Statement, 180 days) following the Second Filing Date.
(iii) Without limiting the foregoing, the Company will promptly respond to all SEC Commission comments, inquiries and requests, and shall request acceleration of effectiveness of the Registration Statements at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement Statements or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(iiiv) Prepare and file with the SEC Commission such amendments and supplements to such Registration Statement Statements and the prospectus used in connection with such Registration Statement Statements as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement Statements and notify the Holders of the filing and effectiveness of such Registration Statement Statements and any amendments or supplements.
(iiiv) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration StatementStatements, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(ivvi) Register and qualify the securities covered by such Registration Statement Statements under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(vvii) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration StatementStatements, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(viviii) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(viiix) Permit counsel to the Holders to review the Registration Statement Statements and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Daysdays on which there is trading on the NASDAQ Global Market or such other market or exchange on which the Common Stock is then principally traded) prior to each filing and will not request acceleration of the Registration Statement Statements without prior notice to such counsel.
(viiix) List the Registrable Securities covered by such Registration Statement Statements on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(b) In the event that either of the Registration Statement has Statements have become effective and, afterwards, any Holder’s ability to sell Registrable Securities registered for resale under either of the Registration Statement Statements is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to either of the Registration Statement Statements or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such either of the Registration Statement Statements then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such the Initial Registration Statement or the Subsequent Registration Statement, as the case may be, or the prospectus (including any supplements thereto) included in either of the Registration Statements, such that such Initial Registration Statement or the Subsequent Registration Statement, as the case may be, or the prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a either of the Registration StatementStatements, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any either of the Registration StatementStatements, all documents filed with the SEC Commission subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such either of the Registration StatementStatements, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with either of the Registration Statement Statements only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC Commission such amendments (including post-effective amendments) and supplements to a either of the Registration Statement Statements and the prospectus used in connection with such either of the Registration StatementStatements, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such either of the Registration Statement Statements effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such either of the Registration StatementStatements. In the case of amendments and supplements to a either of the Registration Statement Statements which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h5(g)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such either of the Registration StatementStatements, if applicable, or shall file such amendments or supplements with the SEC Commission on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such the Initial Registration Statement or the Subsequent Registration Statement, as applicable.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v5.2(a)(vii) or 5.2(a)(vi5.2(a)(viii), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Initial Registration Statement or the Subsequent Registration Statement, as applicable, until such Holder’s receipt of the copies of the supplemented Prospectus prospectus and/or amended amendment to the Initial Registration Statement or the Subsequent Registration Statement, as applicable, contemplated by this Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus prospectus or the Initial Registration Statement or the Subsequent Registration Statement, as applicable. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any either of the Registration Statement Statements if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Securities Purchase and Registration Rights Agreement (Star Scientific Inc)
Registration Requirements. The (a) On or prior to the Filing Date, the Company shall prepare and file with the Commission a Registration Statement (the "Initial Registration Statement") which shall cover all Registrable Securities for an offering to be made on a continuous basis pursuant to a "Shelf" registration statement under Rule 415. The Initial Registration Statement shall be on Form S-3 or any successor form (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 herewith, subject to the reasonable consent of the original Holders of the Registrable Securities). Except as shown on Schedule 2.1(r) to the Purchase Agreement, Company shall (i) not permit any securities other than the Registrable Securities to be included in the Initial Registration Statement and (ii) use its reasonable best efforts to effect cause the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking Initial Registration Statement to file post-be declared effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) Act as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously promptly as possible after the filing of the Report on Form 10-K for the year ended December 31thereof, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But but in any event within 30 days of on or prior to the filing of the Company’s 2004 10-KEffectiveness Date, prepare and file a registration statement with the Commission pursuant to Rule 415 keep such Initial Registration Statement continuously effective under the Securities Act on Form S-3 under until the date which is four years after the date that such Initial Registration Statement is declared effective by the Commission or such earlier date when all Registrable Securities Act (covered by such Initial Registration Statement have been sold or in the event that may be sold without volume restrictions pursuant to Rule 144 as determined by counsel to the Company is ineligible pursuant to use such forma written opinion letter, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available addressed to the Holders and the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities 's transfer agent to such effect (the “Registration Statement”"Effectiveness Period"). The number of shares of Common Stock initially included in such the Initial Registration Statement shall be no less than 100% the sum of (A) the Shares and (B) the Warrant Shares number of Securities that are then issuable upon full exercise conversion of the Warrant. Thereafter Securities (based on the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective Conversion Price (as soon as possible, and defined in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a HolderSecurities) as a result of which the prospectus (including would then be in effect at such time), without regard to any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement limitation on the principal securities exchange and/or market on which Investor's ability to convert the Common Stock is then listed and prepare and file any required filings with such principal market or exchangeSecurities.
(b) In addition to the event Initial Registration Statement, if the Holders of a majority of the Registrable Securities covered by a Registration Statement has become effective andso elect on or after December 15, afterwards1999, any Holder’s ability and pay all expenses therefor, an offering of Registrable Securities pursuant to such Registration Statement may be effected on no more than two (2) occasions in the form of an Underwritten Offering. In such event, and if the managing underwriters advise the Company and such Holders in writing that in their opinion the amount of Registrable Securities proposed to be sold in such Underwritten Offering exceeds the amount of Registrable Securities which can be sold in such Underwritten Offering, there shall be included in such Underwritten Offering the amount of such Registrable Securities which in the opinion of such managing underwriters can be sold, and such amount shall be allocated pro rata among the Holders proposing to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleadingUnderwritten Offering.
(c) If the Holder(s) intend to distribute any of the Registrable Securities by means of are to be sold in an underwritingUnderwritten Offering, the Holder(sinvestment banker in interest that will administer the offering will be selected by the Holders of a majority of the Registrable Securities included in such offering. No Holder may participate in any Underwritten Offering hereunder unless such Holder (i) shall so advise agrees to sell its Registrable Securities on the Company. Any basis provided in any underwriting agreements approved by the Persons entitled hereunder to approve such arrangements and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to agreements and other documents required under the Companyterms of such arrangements.
(d) If (i) the Initial Registration Statement covering all the applicable Registrable Securities and required to be filed by the Company pursuant to this Agreement is not (A) filed with the Commission on or before the Filing Date or (B) declared effective by the Commission on or before the applicable Effectiveness Date, (ii) on any day after the Registration Statement has been declared effective by the Commission (A) sales of all the Registrable Securities required to be included on a Registration Statement cannot be made pursuant to the Registration Statement (including, without limitation, because of a failure to keep the Registration Statement effective, to disclose such information as is necessary for sales to be made pursuant to the Registration Statement, or to register sufficient shares of Common Stock) or (B) the Common Stock is not listed or included for quotation on the Nasdaq, the New York Stock Exchange ("NYSE") or the American Stock Exchange (the "AMEX") after being so listed or included for quotation or (iii) the Company shall otherwise fail to file a Registration Statement required by Section 2(a) hereof, (each such event specified in (i), (ii) and (iii) above, an "Event"), then, as partial relief for the damages to any Holder by reason of any such delay in or reduction of its ability to sell the Registrable Securities (which remedy shall not be exclusive of any other remedies available at law or in equity): (y) the Company shall pay to each Holder an amount in cash (a "Registration Delay Payment") equal to two percent (2%) of the product of (I) the number of Securities held by such Holder and (II) $25,000, multiplied by the sum of: (i) the number of months (prorated for partial months) after the end of the Effectiveness Date and prior to the date the Registration Statement is declared effective by the Commission, provided, however, that there shall be excluded from such period any delays which are solely attributable to changes required by the Purchasers in the Registration Statement with respect to information relating to the Purchasers, or to the failure of the Purchasers to conduct their review of the Registration Statement pursuant to Section 3(a), (ii) the number of months (prorated for partial months) that sales cannot be made pursuant to the Registration Statement after the Registration Statement has been declared effective (including, without limitation, when sales cannot be made by reason of the Company's failure to properly supplement or amend the Prospectus in accordance with the terms of this Agreement, or otherwise, but excluding when such sales cannot be made solely by reason of any act or omission solely attributable to the Purchasers) and (iii) the number of months (prorated for partial months) that the Common Stock is not listed or included for quotation on the Nasdaq, NYSE or AMEX or that trading thereon is halted after the Registration Statement has been declared effective; and (z) the Conversion Price (as defined in the Certificate of Designation) of the Securities shall be decreased 2% on the date of such Event and shall be decreased an additional 2% as of each monthly anniversary of the date of such Event. The Company shall enter into such customary agreements (including pay any required Registration Delay Payment to each Holder in cash on the last Business Day of each month during which an underwriting agreement containing such representations Event has occurred and warranties by is continuing. In the event the Company and fails to make a Registration Delay Payment in a timely manner, such other terms and provisions, as are customarily contained Registration Delay Payment shall bear interest at the rate of 2.0% per month (prorated for partial months) until paid in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availabilityfull.
(e) The Company shall make available represents and warrants that it meets the registrant eligibility and transaction requirements for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with Form S- 3 (for primary and secondary offerings) for the Registration Statement only in registration of the event, and for such period sale of time as, (i) such a suspension is required Registrable Securities by the rules Purchasers and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of any other Holders and the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are reports required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that with the Commission in a timely manner so as to maintain such eligibility for the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraphForm S-3.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (Uniview Technologies Corp)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):possible:
(i) But in any event within 30 60 days of the filing of the Company’s 2004 10-KClosing, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) 5,685,066 of the Warrant Shares issuable upon full exercise of the WarrantWarrants (applied, in the case of the Warrant Shares, to the Holders on a pro rata basis based on the total number of unregistered Warrant Shares held by each such Holder on a fully diluted basis) (the “Initial Registration Statement”). Thereafter the The Company shall use its reasonable best efforts to cause such Initial Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 120 days (or, if the SEC Commission elects to review the Registration Statement, 180 days) following the filing Closing.
(ii) But in any event within 180 calendar days of the Company’s 2004 10-K date the Initial Registration Statement is declared effective by the Commission (the “Effectiveness DeadlineSecond Filing Date”), prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of any remaining Registrable Securities (the “Subsequent Registration Statement” and together with the Initial Registration Statement, the “Registrations Statements”). The Company shall use its reasonable best efforts to cause such Additional Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 120 days (or, if the Commission elects to review the Registration Statement, 180 days) following the Second Filing Date.
(iii) Without limiting the foregoing, the Company will promptly respond to all SEC Commission comments, inquiries and requests, and shall request acceleration of effectiveness of the Registration Statements at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement Statements or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(iiiv) Prepare and file with the SEC Commission such amendments and supplements to such Registration Statement Statements and the prospectus used in connection with such Registration Statement Statements as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement Statements and notify the Holders of the filing and effectiveness of such Registration Statement Statements and any amendments or supplements.
(iiiv) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration StatementStatements, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(ivvi) Register and qualify the securities covered by such Registration Statement Statements under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(vvii) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration StatementStatements, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(viviii) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(viiix) Permit counsel to the Holders to review the Registration Statement Statements and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Daysdays on which there is trading on the NASDAQ Global Market or such other market or exchange on which the Common Stock is then principally traded) prior to each filing and will not request acceleration of the Registration Statement Statements without prior notice to such counsel.
(viiix) List the Registrable Securities covered by such Registration Statement Statements on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(b) In the event that either of the Registration Statement has Statements have become effective and, afterwards, any Holder’s ability to sell Registrable Securities registered for resale under either of the Registration Statement Statements is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to either of the Registration Statement Statements or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such either of the Registration Statement Statements then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such the Initial Registration Statement or the Subsequent Registration Statement, as the case may be, or the prospectus (including any supplements thereto) included in either of the Registration Statements, such that such Initial Registration Statement or the Subsequent Registration Statement, as the case may be, or the prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a either of the Registration StatementStatements, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any either of the Registration StatementStatements, all documents filed with the SEC Commission subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such either of the Registration StatementStatements, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with either of the Registration Statement Statements only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC Commission such amendments (including post-effective amendments) and supplements to a either of the Registration Statement Statements and the prospectus used in connection with such either of the Registration StatementStatements, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such either of the Registration Statement Statements effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such either of the Registration StatementStatements. In the case of amendments and supplements to a either of the Registration Statement Statements which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h5(g)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such either of the Registration StatementStatements, if applicable, or shall file such amendments or supplements with the SEC Commission on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such the Initial Registration Statement or the Subsequent Registration Statement, as applicable.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v5.2(a)(vii) or 5.2(a)(vi5.2(a)(viii), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Initial Registration Statement or the Subsequent Registration Statement, as applicable, until such Holder’s receipt of the copies of the supplemented Prospectus prospectus and/or amended amendment to the Initial Registration Statement or the Subsequent Registration Statement, as applicable, contemplated by this Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus prospectus or the Initial Registration Statement or the Subsequent Registration Statement, as applicable. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any either of the Registration Statement Statements if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Securities Purchase and Registration Rights Agreement (Star Scientific Inc)
Registration Requirements. (a) No later than fifteen (15) business days following the Closing Date, the Company shall file with the SEC one or more registration statements on Form S-3 (together with the prospectus included therein, a "Registration Statement") pursuant to Rule 415 of the Securities Act in order to register with the SEC the continuous resale by the Purchasers, from time to time, of the Shares through the Nasdaq NMS or the facilities of any national securities exchange on which Common Stock is then traded, or in privately- negotiated transactions. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon thereafter as possible, possible and in any event prior within sixty (60) days thereafter. Each Purchaser agrees to 90 days (or, if the SEC elects furnish promptly to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond in writing all information required from time to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity time to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require disclosed in order to facilitate make the disposition of Registrable Securities owned information previously furnished to the Company by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall holder not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchangemisleading.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take pay all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period Expenses (as defined below)) in connection with any registration, andqualification or compliance hereunder, during such period, comply with the provisions of the Securities Act with respect and each Purchaser shall pay all Selling Expenses (as defined below) and other expenses that are not Registration Expenses relating to the disposition of all Registrable Securities of the Company covered Shares resold by such Purchaser. "Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-KExpenses" shall mean all expenses, Form 10-Q or Form 8-K or any analogous report under the 1934 Actexcept for Selling Expenses, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing incurred by the Company that in complying with the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the registration provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securitiesherein described, including, without limitation, information with respect all registration, qualification and filing fees, printing expenses, escrow fees, fees and disbursements of counsel for the Company, blue sky fees and expenses and the expense of any special audits incident to or required by any such registration. "Selling Expenses" shall mean selling commissions, underwriting fees and stock transfer taxes applicable to the number Shares and all fees and disbursements of Registrable Securities being offered or sold, the purchase price being paid therefor and counsel for any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable SecuritiesPurchaser.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Tudor Investment Corp Et Al)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Promptly after, but not later than 5 days after, the Company shall, as expeditiously as possible after the filing of the files its Annual Report on Form 10-K for the fiscal year ended ending December 31, 2004, including 2003 with the filing of a Form 10-K/A containing a management report and an auditor’s report on SEC (the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively"Filing Date"), the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, Company shall prepare and file a registration statement (the "Registration Statement") with the Commission pursuant SEC to Rule 415 under register the Securities Act on Form S-3 under offer and resale of the Securities Act Shares (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company"Registrable Securities") covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares Purchasers and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its commercially reasonable best efforts to cause such Registration Statement and other filings to be declared become effective as soon as possiblewithin 30 days from the Filing Date or not more than five days from the date upon which the SEC shall allow the Company to accelerate effectiveness, and in any whichever is shorter. In the event that the Company shall fail to file the Registration Statement on or prior to 90 days (or, if the SEC elects Filing Date or shall fail to review obtain effectiveness of the Registration Statement, 180 days) Statement within the 30-day period following the filing of the Company’s 2004 10-K Filing Date (the “"Effectiveness Deadline”Date"). Without limiting the foregoing, then the Company will promptly respond make pro rata payments to all SEC commentseach Purchaser (the "Liquidated Damages Payments"), inquiries as liquidated damages and requestsnot as a penalty, and shall request acceleration in an amount equal to 1.0% of effectiveness at the earliest possible date. The Company shall provide aggregate amount of the Holders reasonable opportunity to review Cash Consideration paid by such Purchaser for each 30-day period or pro rata for any portion therefore following the portions of any date by which such Registration Statement or amendment or supplement thereto containing disclosure regarding should have been effective; provided, however, that if the Holders prior Registration Statement is subject to filing.
(ii) Prepare and file with review by the SEC such amendments and supplements staff, then the Effectiveness Date shall be extended by an additional 90 days without any Liquidated Damages Payments required to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Actmade; provided, copies of the Registration Statementfurther, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of material fact or omits to state a material fact required to be stated therein or necessary obligated to make the statements therein not misleading in light of the circumstances then existing, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, Liquidated Damages Payments if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect not effective due to the Registration Statement or the fact Purchaser's failure to provide any information about itself that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of material fact or omits to state a material fact required is necessary to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(hb) Each Holder agrees by its acquisition of The Company shall pay all Registration Expenses (as defined below) in connection with any registration, qualification or compliance hereunder and each Purchaser shall pay all Selling Expenses (as defined below) and other expenses that are not Registration Expenses relating to the Registrable Securities thatresold by such Purchaser. "Registration Expenses" shall mean all expenses, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi)except for Selling Expenses, and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing incurred by the Company that in complying with the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the registration provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securitiesherein described, including, without limitation, information with respect all registration, qualification and filing fees, printing expenses, escrow fees, fees and disbursements of counsel for the Company, blue sky fees and expenses and the expense of any special audits incident to the number of Registrable Securities being offered or soldrequired by any such registration. "Selling Expenses" shall mean all selling commissions, the purchase price being paid therefor underwriting fees and any other terms of the offering of stock transfer taxes applicable to the Registrable Securities to be sold in such offering; (ii) as soon as practicable make and all required filings fees and disbursements of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to counsel for any Registration Statement if reasonably requested by a Holder holding any Registrable SecuritiesPurchaser.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Questcor Pharmaceuticals Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, including without limitation, limitation the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable "blue sky sky" or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the HolderHolder and in all U.S. jurisdictions. Such reasonable best efforts by the Company shall include, without limitation, include the following:
(a) The Company shall, as expeditiously as reasonably possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):Closing Date:
(i) But in any event within 30 days of the filing of the Company’s 2004 10-Kthereafter, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 S-1 or Form S-3, as applicable, under the Securities Act (or in the event that the Company is ineligible to use either such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the CompanyAct) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (such registration statement, including any amendments or supplements thereto and prospectuses contained therein, is referred to herein as the “"Registration Statement”"). The , which Registration Statement, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such number of additional shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares as may become issuable upon full exercise of the Warrantto prevent dilution resulting from stock splits, stock dividends or similar events. Thereafter Thereafter, the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possiblereasonably practicable, and in any event prior to 90 the earlier of (i) 120 calendar days following the Closing Date or (or, if ii) 5 Trading Days after SEC clearance to request acceleration (the SEC elects "Effectiveness Deadline"). The Company shall provide Holders and their legal counsel reasonable opportunity to review the any such Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”)Statement or amendment or supplement thereto prior to filing. Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The If the Company shall provide is not initially eligible to use Form S-3, it will, at the Holders reasonable opportunity request of a majority-in-interest of the holders of Registrable Securities, amend its Form S-1 to review the portions of any a Form S-3 at such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior time that it becomes eligible to filingdo so.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement Statement, or prepare and file such additional registration statements, as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement in accordance with the intended methods of disposition by the seller thereof as set forth in the Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish After the registration, furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register Use its best efforts to register and qualify the securities covered by such Registration Statement under the such other securities or “"blue sky” " laws of all domestic jurisdictions, to U.S. jurisdictions (except in any such jurisdiction where the extent requiredregistration and qualification of the securities covered by such Registration Statement is exempt under the laws and regulations of such jurisdiction); provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events event unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereofthereof and any information incorporated or deemed to be incorporated by reference therein) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and and, pursuant to Section 2(f), use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit a single firm of counsel, designated as Holders' counsel to by the Holders of a majority of the Registrable Securities included in the Registration Statement, to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing filing, and will shall not request acceleration of the Registration Statement without prior notice file any document in a form to which such counselcounsel reasonably objects.
(viii) List Use its best efforts to list the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed and/or quoted and prepare and file any required filings with such principal the National Association of Securities Dealers, Inc. or any exchange or market where the Common Stock is then traded.
(ix) If applicable, take all steps necessary to enable Holders to avail themselves of the prospectus delivery mechanism set forth in Rule 153 (or exchangesuccessor thereto) under the Act.
(b) In Set forth below in this Section 2(b) are (I) events that may arise that the event Investors consider will interfere with the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities full enjoyment of their rights under the Registration Statement is suspended for more than Purchase Agreement and this Agreement (the "Interfering Events"), and (II) certain remedies applicable in each of these events. Paragraphs (i) 45 days in any 90-day period or through (iiiv) 90 days in any calendar yearof this Section 2(b) describe the Interfering Events, including without limitation by reason of any suspension or stop order with respect provide a remedy to the Registration Statement or Investors if an Interfering Event occurs and provide that the fact Investors may require that an event has occurred the Company redeem outstanding Securities at a specified price if certain Interfering Events are not timely cured. Paragraph (v) provides, inter alia, that if payments required as a result the remedy in the case of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 certain of the circumstances then existingInterfering Events are not paid when due, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company Investors to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspensionredeem outstanding Securities at a specified price. The Company will use reasonable best efforts preceding paragraphs in this Section 2(b) are meant to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, serve only as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant an introduction to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi2(b), are for convenience only, and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed not to be incorporated by reference considered in such Prospectus applying, construing or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of interpreting this paragraphSection 2(b).
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (Constellation 3d Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):possible:
(i) But in any event within 30 75 days of the filing of the Company’s 2004 10-KClosing, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities Shares and the Warrant Shares issuable upon full exercise of the Warrant (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 135 days (or, if the SEC Commission elects to review the Registration Statement, 180 195 days) following the filing Closing. The Company, in its sole discretion, may elect to include for offer and sale securities in addition to the Registrable Securities in the Registration Statement. By 5:30 p.m. (New York time) on the business day immediately following the effective date of the Company’s 2004 10-K Registration Statement, the Company shall file with the Commission in accordance with Rule 424(b) under the Securities Act the final prospectus to be used in connection with sales pursuant to the Registration Statement (the “Effectiveness Deadline”whether or not such a prospectus is technically required by such rule). .
(ii) Without limiting the foregoing, the Company will promptly respond to all SEC Commission comments, inquiries and requests, and shall request acceleration of effectiveness of the Registration Statement at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(iiiii) Prepare and file with the SEC Commission such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iiiiv) Furnish or otherwise make available to each Holder such numbers of copies of a current prospectus included in the Registration Statement conforming with the requirements of the Securities Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(ivv) Register and qualify the securities covered by such the Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(vvi) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events event unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vivii) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(viiviii) Permit Upon request, permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Daysdays on which there is trading on the NASDAQ Global Market (the “Principal Market”) or such other market or exchange on which the Common Stock is then principally traded) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel; provided, however, that the Company shall not be obligated to comply with this Section 5.2(a)(viii) if compliance would cause the Company to fail to comply with any other provisions hereunder.
(viiiix) List Qualify the Registrable Securities covered by such Registration Statement for listing on the Principal Market or the principal securities exchange and/or market on which the Common Stock is then listed listed, including the preparation and prepare and file filing of any required filings with such principal market or exchange.
(b) In the event that the Registration Statement has become been declared effective by the Commission and, afterwards, any Holder’s ability to sell Registrable Securities registered for resale under the Registration Statement is suspended for more than (i) 45 days in any 90-90 day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such the Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such the Registration Statement or the prospectus (including any supplements thereto) included in the Registration Statement, such that such the Registration Statement or the prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Subject to Section 5.2(c) above, the Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a the Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any the Registration Statement, all documents filed with the SEC Commission subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such the Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (iif)(ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC Commission such amendments (including post-effective amendments) and supplements to a the Registration Statement and the prospectus used in connection with such the Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such the Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such the Registration Statement. In the case of amendments and supplements to a the Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h5.2(g)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Exchange Act, the Company shall have incorporated such report by reference into such the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC Commission on the same day on which the 1934 Exchange Act report is filed which created the requirement for the Company to amend or supplement such the Registration Statement.
(h) Each Holder agrees by his/its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v5.2(a)(vi) or 5.2(a)(vi5.2(a)(vii), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus prospectus and/or amended amendment to the Registration Statement contemplated by this Section 5.2, or until he/it is advised in writing by the Company that the use of the applicable Prospectus prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus prospectus or the Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; , (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; , and (iii) as soon as practicable, supplement or make amendments to any the Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Securities Purchase and Registration Rights Agreement (Rock Creek Pharmaceuticals, Inc.)
Registration Requirements. The Company shall use its reasonable best efforts to effect as soon as practical the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) within the five (5) month period after the Closing Date as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):possible:
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare Prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 SB-2 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after SB-2 as soon as Form S-3 SB-2 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). , The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”)practicable. Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish As soon as practicable after the effectiveness of the Registration Statement or the filing date of any amendments or supplements, as the case may be, furnish, by email to the respective email addresses set forth on the signature pages hereto, to each Holder that has Common Shares included in the Registration Statement such numbers of copies of a current prospectus conforming with the requirements of the Securities Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require request in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue skyBlue Sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify promptly each Holder immediately that has Registrable Securities included in the Registration Statement of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holderevent) of which the Company has knowledge as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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 existingexisting (each an “Event”), and use its reasonable best efforts to promptly update and/or correct such prospectus. Each Holder will hold in confidence and will not make any disclosure of any such Event and any related information disclosed by the Company except to Holder’s financial and legal advisors.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed and prepare and file any required filings with the Over The Counter Bulletin Board (the “OTCBB”), if any, or any other exchange or market where the Common Shares are traded.
(viii) Take all steps reasonably necessary to enable Holders to avail themselves of the prospectus delivery mechanism set forth in Rule 153 (or successor thereto) under the Act.
(ix) Permit a Holder, if such principal market Holder reasonably believes it might be deemed to be an underwriter or exchangea controlling person of the Company, to participate in the preparation of such registration or comparable statement.
(x) In the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any common stock included in such registration statement for sale in any jurisdiction, the Company shall use its reasonable efforts promptly to obtain the withdrawal of such order.
(xi) Furnish to the underwriters, if such securities are being sold through underwriters, at the request of such underwriters, on the date that such Registrable Securities are delivered to the underwriters for sale in connection with a registration pursuant to this Agreement, (i) an opinion, dated such date, of the counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, and (ii) a comfort letter dated such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed solely to the underwriters, which letter specifies the parties entitled to rely thereon.
(b) In Notwithstanding the event obligations under Section 2(a)(v) or any provision of this Agreement, if (i) in the good faith judgment of the Company, following consultation with legal counsel, it would be detrimental to the Company and its stockholders for resales of Registrable Securities to be made pursuant to the Registration Statement has become effective and, afterwards, any Holder’s ability due to sell Registrable Securities under the existence of a material development or potential material development involving the Company that the Company would be obligated to disclose in the Registration Statement is suspended for more than (i) 45 days in any 90-day period Statement, which disclosure would be premature or otherwise inadvisable at such time or would have a material adverse effect upon the Company and its stockholders, or (ii) 90 days in any calendar yearthe good faith judgment of the Company, including without limitation by reason it would adversely affect or require premature disclosure of the filing of a Company-initiated registration of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result class of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 existingits equity securities, then the Company shall take such action as may be necessary will have the right to amend or supplement such suspend the use of the Registration Statement or prospectus such for two periods of not more than 30 calendar days each in any 12 month period, but only if the Company reasonably concludes, after consultation with outside legal counsel, that such the failure to suspend the use of the Registration Statement or prospectus, as so amended, shall not contain an untrue statement of such would create a material fact liability or omit to state a material fact required to be stated therein violation under applicable securities laws or necessary to make the statements not misleadingregulations.
(c) If at any time subsequent to the Holder(s) intend date such Registration Statement is declared effective, the number of shares of Common Stock registered for resale pursuant to distribute the Registration Agreement is not equal to at least 100% of the Registrable Securities by means of an underwritingSecurities, the Holder(s) Company shall so advise amend the CompanyRegistration Statement to add such additional securities. Any In the event that the Company is unable under the securities laws to add such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory additional securities to the Companythen effective Registration Statement, the Company shall promptly file, in accordance with the procedures set forth herein, an additional Registration Statement with respect to such newly Registrable Securities. The Company shall use its best efforts to cause any such additional Registration Statement, when filed, to become effective as soon as practicable after that date that the need to file the Registration Statement arose.
(d) The If at any time during the term of this Agreement, the registration statement described in Section 2(a) is not effective with respect to some or all of the Registrable Securities, each Holder shall have the following “piggyback” registration rights, which rights shall be pari passu to “piggyback” registration rights or similar rights provided under any other registration rights agreements binding on the Company. If the Company at any time following the Closing Date proposes for any reason to register Common Stock under the Securities Act (other than registrations relating to employee benefit plans, business combinations or other registrations on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto), it shall promptly give written notice to each Holder of its intention to so register such equity securities and, upon the written request, given within 20 calendar days after delivery of such notice by the Company, of such Holder to include in such registration Registrable Securities held by such Holder (which request shall specify the number of Registrable Shares proposed to be included in such registration by such Holder and shall state the intended method of disposition of such Registrable Securities by such Holder), the Company shall enter into use its best efforts to cause all such Registrable Securities to be included in such registration on the same terms and conditions as the securities otherwise being sold in such registration; provided, however, that the Company shall have the right to delay such a registration under customary agreements circumstances for a period not in excess of 90 calendar days in any twelve month period and if the managing underwriter advises the Company in writing that the inclusion of all Registrable Securities proposed to be included in such registration would interfere materially with the successful marketing (including an underwriting agreement containing pricing) of primary shares (the “Primary Shares”) proposed to be registered by the Company, then the number of Primary Shares and Registrable Securities proposed to be included in such representations and warranties registration shall be included in the following order:
(i) first, the Primary Shares to be sold by the Company; and
(ii) second, the Registrable Securities requested to be included in such registration pursuant to this Section 2(d) on a pari passu basis with the securities of other holders with “piggyback” registration rights; provided, that in the case of any such underwritten offering of Common Shares by the Company that is in satisfaction of a demand registration pursuant to Section 2(e), the order for inclusion of Primary Shares and such other terms and provisions, Registrable Securities shall be as are customarily contained set forth in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availabilitythat section.
(e) If at any time during the period beginning 180 calendar days after the Closing Date and ending two years after the Closing Date, the registration statement described in Section 2(a) is not effective with respect to some or all of the Registrable Securities, Holders who collectively hold more than $500,000 in value of the Registrable Securities shall have the following demand registration rights. If the Company shall be requested in writing by an eligible Holder, or eligible Holders, to effect a registration on Form S-1, or on Form SB-2 if the Company is so eligible, under the Securities Act of Registrable Securities, then the Company shall promptly use its best efforts to effect such registration under the Securities Act of such Registrable Securities which the Company has been so requested to register in the manner described in Section 2(a); provided, however, that the Company shall not be obligated to effect any registration under this Section 2(e) except in accordance with the following provisions:
(i) The Company shall make available for inspection not be obligated to file and cause to become effective (x) more than two registration statements on Form S-1 or Form SB-2 with respect to Registrable Securities initiated by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, this Section 2(e); (y) any registration statement covering less than $500,000 in value of Registrable Securities; or (z) any registration statement during any period in which any other registration statement pursuant to which Common Shares are to be or were sold has been filed and any attorney not withdrawn or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of has been declared effective within the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or prior 60 calendar days;
(ii) whoThe Company may delay the filing or effectiveness of any registration statement for a period of up to 60 calendar days after the date of a request for registration pursuant to this Section 2(e) if the Company determines in good faith that (A) it is in possession of material, itself non-public information concerning an acquisition, merger, recapitalization, consolidation, reorganization or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business other material transaction by or of the Company or its Subsidiariesconcerning pending or threatened litigation and (B) disclosure of such information would jeopardize any such transaction or litigation or otherwise materially harm the Company; provided, however, that the Company may not exercise such deferral right more than twice in any twelve month-period.
(f) The At such time as the Company may suspend shall have qualified for the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 Form S-3 promulgated under the Securities ActAct or any successor form thereto, as may be necessary the Holders shall have the right to keep request in writing registrations on Form S-3 or such Registration Statement effective at all times during successor form of Registrable Shares held by the Registration Period (as defined belowHolders in the manner described in Section 2(a), and, during such period, comply with which request or requests shall (i) specify the provisions number of Registrable Shares held by the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required requesting Holders intended to be filed pursuant to this Agreement sold or disposed of, (including pursuant to this Section 3(h)ii) by reason state the intended method of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing Shares held by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; Holders and (iii) relate to Registrable Shares having an anticipated aggregate offering price of at least $500,000. A requested registration on Form S-3 or any such successor form in compliance with Section 4 shall not count as soon a registration statement initiated pursuant to Section 2(e) but shall otherwise be treated as practicablea registration statement initiated pursuant to, supplement and shall, except as otherwise expressly provided in Section 4, be subject to Section 2. In no event will any Holder be entitled to demand any registration on Form S-3 if the registration would require filing under Blue Sky or make amendments similar state securities laws in any jurisdiction in which the Company would be required to any Registration Statement if reasonably requested by qualify to do business or execute a Holder holding any Registrable Securitiesgeneral consent to service of process to effect such registration and filing.
Appears in 1 contract
Samples: Registration Rights Agreement (Migo Software, Inc.)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible within forty-five (45) days after the filing of Closing Date and the Report on Form 10-K for the year ended December 31Contingent Closing Date, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number ) with the SEC on Form S-3 (if not available, any other then available form) to effect the registration under the Securities Act of the Shares received by E*TRADE at Closing (together with any shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used issued in connection with such Registration Statement as may be necessary to comply with the provisions any stock dividend, split, combination or recapitalization on, of the Act or with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness shares of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with shares, collectively, the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of “Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purposeShares”). The Company shall use its commercially reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review cause the Registration Statement and all amendments and supplements thereto to be declared effective by the SEC as soon as practicable within a reasonable period 90 days of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchangefiling.
(b) In the event the Such Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under shall comply in all material respects with the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 requirements of the circumstances then existing, then Securities Act and the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, rules and regulations of the SEC promulgated thereunder and shall not contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein not misleading.
(c) If the Holder(s) intend Company shall not be required to distribute the Registrable Securities by means of conduct an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Companyunderwritten offering.
(d) The Company shall enter into keep the Registration Statement effective to sell Registrable Shares, until the earlier of (A) such customary agreements date as all of the Registrable Shares have been resold or (including an underwriting agreement containing B) two years from the date such representations and warranties Registration Statement is declared effective by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to SEC (the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability“Registration Period”).
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC SEC, as promptly as is practicable, such amendments (including post-effective amendments) and supplements to a the Registration Statement and the prospectus used in connection with such the Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, Statement as may be necessary to keep such the Registration Statement effective at all times during the Registration Period (as defined below)Period, and, during such period, to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company Shares covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(hf) Each Holder agrees by its acquisition Company shall furnish to E*TRADE such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto and such other documents as E*TRADE may reasonably request in order to facilitate the disposition of the Registrable Securities thatShares owned by E*TRADE.
(g) Company shall use its commercially reasonable efforts to cause all Registrable Shares to be listed or included on each national securities exchange, upon receipt of a notice from the Company market or quotation service on which securities of the occurrence same class or series issued by Company are then listed or included.
(h) With a view to making available to E*TRADE the benefits of Rule 144 and any event other rule or regulation of the kind described SEC that may at any time permit E*TRADE to sell Registrable Shares to the public without registration or pursuant to registration, Company covenants and agrees to: (A) make and keep public information available, as those terms are understood and defined in Sections 5.2(a)(vRule 144, until such date as all of the Registrable Shares shall have been resold and (B) or 5.2(a)(vi), file with the SEC in a timely manner all reports and upon notice other documents required of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities Company under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraphExchange Act.
(i) If requested by a Holder, the Company shall (i) use commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, and, if such an order is issued, to obtain the withdrawal of such order as soon as practicable incorporate (including in a prospectus each case by amending or supplementing the Registration Statement) and to notify E*TRADE of the issuance of such order and the resolution thereof, and if the Registration Statement is supplemented or amended, promptly deliver such number of copies of such supplement or postamendment to E*TRADE as E*TRADE may reasonably request.
(j) Company may, by written notice to E*TRADE, refuse to permit E*TRADE to resell any Registrable Shares pursuant to the Registration Statement at any time; provided, however, that in order to exercise this right at any time, Company must notify E*TRADE in writing to the effect that suspension of the sale of shares under the Registration Statement is necessary because either (A) Company has determined in good faith that such a sale would be in violation of the requirements of the Securities Act and the regulations promulgated by the SEC thereunder or (B) there exists at the time material non-effective amendment public information relating to Company which would be harmful to Company’s business interests if disclosed. Notwithstanding anything to the contrary herein, except as required by regulatory or similar order, Company shall not exercise its rights under this clause (x) to suspend sales of Registrable Shares for a period in excess of 15 consecutive days or 30 days in any 365-day period.
(k) If Company refuses to permit E*TRADE to resell any Registrable Shares pursuant to subsection (x) above, Company shall, as promptly as practicable following the termination of the circumstance which entitled Company to do so, take such information actions as may be necessary to file or reinstate the effectiveness of the Registration Statement and/or give written notice to E*TRADE authorizing it to resume sales pursuant to the Registration Statement. If as a Holder reasonably requests result thereof, the prospectus included in the Registration Statement has been amended to comply with the requirements of the Securities Act, Company shall enclose such revised prospectus with the notice to E*TRADE given pursuant to this Section 8.2 and E*TRADE shall make no offers or sales of shares pursuant to the Registration Statement other than by means of such revised prospectus.
(l) Company agrees to indemnify and hold harmless E*TRADE against any losses to which E*TRADE, as applicable, may become subject by reason of any untrue statement of a material fact contained in the Registration Statement, or any omission to state therein a fact required to be included stated therein or necessary to make the statements therein not misleading, except insofar as such losses arise out of, or are based upon, information furnished in writing to Company by or on behalf of E*TRADE for use in the Registration Statement.
(m) Company shall pay all Registration Expenses (as defined below) in connection with any registration, qualification or compliance hereunder, and E*TRADE shall pay all Selling Expenses (as defined below) and other expenses that are not Registration Expenses relating to the sale and distribution of Registrable SecuritiesShares to be resold by E*TRADE. “Registration Expenses” shall mean all expenses, except for Selling Expenses, incurred by Company in complying with the registration provisions set forth herein, including, without limitation, information all registration, qualification and filing fees, printing expenses, escrow fees, fees and disbursements of counsel for Company, blue sky fees and expenses and the expense of any special audits incident to or required in connection with respect any such registration. “Selling Expenses” shall mean selling commissions, underwriting fees, expenses of counsel to E*TRADE and stock transfer taxes applicable to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable SecuritiesShares.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Access Worldwide Communications Inc)
Registration Requirements. The Company shall use its commercially reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder, except that the Company shall not be obligated to include an underwritten offering as a manner of sale. Such commercially reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):possible:
(i) But in any event within 30 ten (10) days of the filing of the Company’s 2004 10-KClosing, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities Shares and the Warrant Shares (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its commercially reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 60 days (or, if the SEC Commission elects to review the Registration Statement, 180 90 days) following the filing Closing. The Company, in its sole discretion, may elect to include for offer and sale securities in addition to the Registrable Securities in the Registration Statement. Promptly following the effective date of the Company’s 2004 10-K Registration Statement, the Company shall file with the Commission in accordance with Rule 424(b) under the Securities Act the final prospectus to be used in connection with sales pursuant to the Registration Statement (the “Effectiveness Deadline”whether or not such a prospectus is technically required by such rule). .
(ii) Without limiting the foregoing, the Company will promptly respond to all SEC Commission comments, inquiries and requests, and shall request acceleration of effectiveness of the Registration Statement at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(iiiii) Prepare and file with the SEC Commission such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iiiiv) Furnish or otherwise make available to each Holder such numbers of copies of a current prospectus included in the Registration Statement conforming with the requirements of the Securities Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(ivv) Register and qualify the securities covered by such the Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(vvi) Notify each Holder immediately as soon as practicable of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holderevent) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its commercially reasonable best efforts to promptly update and/or correct such prospectus.
(vivii) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its commercially reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(viiviii) Permit Upon request, permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Daystrading days) prior to each filing and filing; provided, however, that the Company will not request acceleration of be obligated to comply with this Section 5.2(a)(viii) if compliance would cause the Registration Statement without prior notice Company to such counselfail to comply with any other provisions hereunder.
(viiiix) List Qualify the Registrable Securities covered by such Registration Statement for listing on the principal securities exchange and/or market on which the Common Stock is then listed listed, including the preparation and prepare and file filing of any required filings with such principal market or exchange.
(b) In the event that the Registration Statement has become been declared effective by the Commission and, afterwards, any Holder’s ability to sell Registrable Securities registered for resale under the Registration Statement is suspended for more than (i) 45 days in any 90-90 day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such the Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such the Registration Statement or the prospectus (including any supplements thereto) included in the Registration Statement, such that such the Registration Statement or the prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwritingNotwithstanding Section 5.2(b), the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (iic)(ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use commercially reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(gd) The Company shall prepare and file with the SEC Commission such amendments (including post-effective amendments) and supplements to a the Registration Statement and the prospectus used in connection with such the Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such the Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such the Registration Statement. In the case of amendments and supplements to a the Registration Statement which that are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h5.2(d)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Exchange Act, the Company shall have incorporated such report by reference into such the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC Commission on the same day on which the 1934 Exchange Act report is filed which created the requirement for the Company to amend or supplement such the Registration Statement.
(he) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v5.2(a)(vi) or 5.2(a)(vi5.2(a)(vii), and upon notice of any suspension under Section 5.2(f5.2(c), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such HolderXxxxxx’s receipt of the copies of the supplemented Prospectus prospectus and/or amended amendment to the Registration Statement contemplated by this Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus prospectus or the Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Securities Purchase and Registration Rights Agreement (BioCardia, Inc.)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky United States state securities and takeover laws ("Blue Sky Laws") or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the HolderUnderwriter for purposes of maximizing the proceeds realizable by the Underwriter from such sale or distribution. Such The Company shall cooperate with the Underwriter and take all such other reasonable best efforts by actions in connection therewith in order to expedite or facilitate the disposition of the Registrable Securities. Prior to the thirtieth day from the date hereof, the Company shall include, without limitation, register the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The maximum number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the WarrantPurchase Option by filing with the SEC a post-effective amendment to the Registration Statement pursuant to the Securities Act. Thereafter The Company shall keep such Registration Statement effective until the Purchase Option Expiration Date with regard to at least the maximum number of shares of Common Stock issuable pursuant to the Purchase Option, except to the extent a Blocking Event occurs pursuant to Section 3.3. If a Blocking Event occurs pursuant to Section 3.3 which shall affect the Underwriter's ability to sell shares of Common Stock issuable pursuant to the Purchase Option, the Company shall use its reasonable best efforts to cause remove such Registration Statement and other filings to be declared effective Blocking Event as soon as possible, and in any event prior to 90 days (or, if including the filing with the SEC elects of a Prospectus supplement or post-effective amendment to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement related Prospectus, as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Actapplicable; provided, copies of the Registration Statementhowever, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith to disclose any material information relating to a proposed transaction or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred time as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take would generally, based on advice from counsel, disclose such action as may be necessary to amend transaction or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleadingevent.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):possible:
(i) But in any event within 30 60 days of the filing of the Company’s 2004 10-KClosing, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the WarrantWarrants (the “Initial Registration Statement”). Thereafter the The Company shall use its reasonable best efforts to cause such Initial Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 120 days (or, if the SEC Commission elects to review the Registration Statement, 180 days) following the filing Closing.
(ii) But in any event within 180 calendar days of the Company’s 2004 10-K date the Initial Registration Statement is declared effective by the Commission (the “Effectiveness DeadlineSecond Filing Date”), prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of any remaining Registrable Securities (the “Subsequent Registration Statement” and together with the Initial Registration Statement, the “Registrations Statements”). The Company shall use its reasonable best efforts to cause such Additional Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 120 days (or, if the Commission elects to review the Registration Statement, 180 days) following the Second Filing Date.
(iii) Without limiting the foregoing, the Company will promptly respond to all SEC Commission comments, inquiries and requests, and shall request acceleration of effectiveness of the Registration Statements at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement Statements or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(iiiv) Prepare and file with the SEC Commission such amendments and supplements to such Registration Statement Statements and the prospectus used in connection with such Registration Statement Statements as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement Statements and notify the Holders of the filing and effectiveness of such Registration Statement Statements and any amendments or supplements.
(iiiv) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration StatementStatements, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(ivvi) Register and qualify the securities covered by such Registration Statement Statements under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(vvii) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration StatementStatements, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(viviii) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(viiix) Permit counsel to the Holders to review the Registration Statement Statements and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Daysdays on which there is trading on the Principal Market or such other market or exchange on which the Common Stock is then principally traded) prior to each filing and will not request acceleration of the Registration Statement Statements without prior notice to such counsel.
(viiix) List the Registrable Securities covered by such Registration Statement Statements on the principal securities Principal Market, exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange, and shall maintain such listing of the Common Stock and all Registrable Securities from time to time issuable under the terms of this Agreement and the Warrant on the Principal Market, exchange and/or market on which the Common Stock is then listed.
(b) In the event that either of the Registration Statement has Statements have become effective and, afterwards, any Holder’s ability to sell Registrable Securities registered for resale under either of the Registration Statement Statements is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to either of the Registration Statement Statements or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such either of the Registration Statement Statements then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such the Initial Registration Statement or the Subsequent Registration Statement, as the case may be, or the prospectus (including any supplements thereto) included in either of the Registration Statements, such that such Initial Registration Statement or the Subsequent Registration Statement, as the case may be, or the prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a either of the Registration StatementStatements, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any either of the Registration StatementStatements, all documents filed with the SEC Commission subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such either of the Registration StatementStatements, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with either of the Registration Statement Statements only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC Commission such amendments (including post-effective amendments) and supplements to a either of the Registration Statement Statements and the prospectus used in connection with such either of the Registration StatementStatements, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such either of the Registration Statement Statements effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such either of the Registration StatementStatements. In the case of amendments and supplements to a either of the Registration Statement Statements which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h5(g)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such either of the Registration StatementStatements, if applicable, or shall file such amendments or supplements with the SEC Commission on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such the Initial Registration Statement or the Subsequent Registration Statement, as applicable.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v5.2(a)(vii) or 5.2(a)(vi5.2(a)(viii), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Initial Registration Statement or the Subsequent Registration Statement, as applicable, until such Holder’s receipt of the copies of the supplemented Prospectus prospectus and/or amended amendment to the Initial Registration Statement or the Subsequent Registration Statement, as applicable, contemplated by this Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus prospectus or the Initial Registration Statement or the Subsequent Registration Statement, as applicable. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any either of the Registration Statement Statements if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Securities Purchase and Registration Rights Agreement (Star Scientific Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (includinga) Promptly after, without limitationbut not later than 60 days after, the execution of an undertaking to file post-effective amendmentsClosing Date, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement (the "Registration Statement") with the Commission pursuant SEC to Rule 415 under register the Securities Act on Form S-3 under offer and resale of the Securities Act Shares and the Warrant Shares (together, the "Registrable Securities") by the Purchasers and shall use commercially reasonable efforts to cause such Registration Statement to become effective within 90 days from the Closing Date or in not more than five days from the date upon which the SEC shall allow the Company to accelerate effectiveness, whichever is shorter. In the event that the Company is ineligible shall fail to use such formfile the Registration Statement within the 60-day period following the Closing Date or shall fail to obtain effectiveness of the Registration Statement within the 90-day period following the Closing Date, such other form as the Company is eligible hereby agrees that it shall issue to use under the Securities Act provided that each Purchaser Warrants to purchase such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in equal to 2% of the aggregate number of Shares purchased by such Purchaser for each and every thirty (30) day period with respect to which such Registration Statement shall not be no less than filed or effective, as the sum of case may be (A) the Shares and (B) "Penalty Warrant"); provided, however, that if the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings is subject to review by the SEC staff, then such 90-day period shall be extended an additional 90 days without any Penalty Warrants required to be declared effective as soon as possibleissued; provided, and in any event prior to 90 days (orfurther, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto obligated to qualify issue any Penalty Warrants if the Registration Statement is not effective due to do business or the Purchaser's failure to file a general consent provide any information about itself that is necessary to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included be contained in such Registration Statement, as then in effect, includes . The Penalty Warrants shall have an untrue statement of material fact or omits exercise price per share equal to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light 125% of the circumstances then existing, Market Price and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately shall be exercisable for a period of five years from the date of issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company and shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel be substantially similar to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchangeWarrants.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take pay all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period Expenses (as defined below)) in connection with any registration, and, during such period, comply with the provisions of the Securities Act with respect qualification or compliance hereunder and each Purchaser shall pay all Selling Expenses (as defined below) and other expenses that are not Registration Expenses relating to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities thatresold by such Purchaser. "Registration Expenses" shall mean all expenses, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi)except for Selling Expenses, and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing incurred by the Company that in complying with the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the registration provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securitiesherein described, including, without limitation, information with respect all registration, qualification and filing fees, printing expenses, escrow fees, fees and disbursements of counsel for the Company, blue sky fees and expenses and the expense of any special audits incident to the number of Registrable Securities being offered or soldrequired by any such registration. "Selling Expenses" shall mean all selling commissions, the purchase price being paid therefor underwriting fees and any other terms of the offering of stock transfer taxes applicable to the Registrable Securities to be sold in such offering; (ii) as soon as practicable make and all required filings fees and disbursements of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to counsel for any Registration Statement if reasonably requested by a Holder holding any Registrable SecuritiesPurchaser.
Appears in 1 contract
Samples: Stock and Warrant Purchase Agreement (Questcor Pharmaceuticals Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, including without limitation, limitation the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky “Blue Sky” or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the HolderHolder and in all U.S. jurisdictions. Such reasonable best efforts by the Company shall include, without limitation, include the following:
(a) The Company shall, as expeditiously as reasonably possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):Demand Date:
(i) But in any event within 30 days of the filing of the Company’s 2004 10-Kthereafter (“Filing Deadline”), prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the CompanyAct) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (such registration statement, including any amendments or supplements thereto and prospectuses contained therein, is referred to herein as the “Registration Statement”), which Registration Statement, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such number of additional shares of Common Stock as may become issuable to prevent dilution resulting from stock splits, stock dividends or similar events. The Registration Statement shall identify the Holders as selling securityholders and not as underwriters. The number of shares of Common Stock initially included in such Registration Statement shall be no less than 2.0 times the sum number of (A) the Shares and (B) the Warrant Shares that are as of the date the Registration Statement is filed issuable upon full exercise of the WarrantWarrants. Thereafter Thereafter, the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possiblepracticable, and in any event prior to the earlier of (i) 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K applicable Demand Date or (ii) five days after SEC clearance to request acceleration (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement in accordance with the intended methods of disposition by the seller thereof as set forth in the Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish After the registration, furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register Use its best efforts to register and qualify the securities covered by such Registration Statement under the such other securities or “blue skyBlue Sky” laws of all domestic U.S. jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereofthereof and any information incorporated or deemed to be incorporated by reference therein) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and and, pursuant to Section 2(f), use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit a single firm of counsel, designated as Holders’ counsel to by the Holders of a majority of the Registrable Securities included in the Registration Statement, to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing filing, and will shall not request acceleration of the Registration Statement without prior notice file any document in a form to which such counselcounsel reasonably objects.
(viii) List Use its best efforts to list the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed and prepare and file any required filings with such principal the National Association of Securities Dealers, Inc. or any exchange or market where the Common Stock is then traded.
(ix) If applicable, take all steps necessary to enable Holders to avail themselves of the prospectus delivery mechanism set forth in Rule 153 (or exchangesuccessor thereto) under the Act.
(x) File and cause to become effective additional Registration Statements if the number of Registrable Securities at any time exceeds 85% of the number of shares of Common Stock then registered in the existing Registration Statements hereunder.
(b) In Set forth below in this Section 2(b) are (I) events that may arise that the event Lenders consider will interfere with the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities full enjoyment of their rights under the Registration Statement is suspended for more than Warrants, the Loan Agreement and this Agreement (the “Interfering Events”), and (II) certain remedies applicable in each of these events. Paragraphs (i) 45 days in any 90-day period or through (iiiv) 90 days in any calendar yearof this Section 2(b) describe the Interfering Events, including without limitation by reason of any suspension or stop order with respect provide a remedy to the Registration Statement Holders if an Interfering Event occurs and provide that the Holders may require that the Company redeem outstanding Warrants or Registrable Securities at a specified price if certain Interfering Events are not timely cured. Paragraph (vi) provides, inter alia, that if payments required as the fact that an event has occurred as a result remedy in the case of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 certain of the circumstances then existingInterfering Events are not paid when due, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission Holders to redeem outstanding Warrants or Registrable Securities at a specified price. Paragraph (iiviii) it is determined in good faith by the Board of Directors of the Company provides, inter alia, that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify have the nature of the event giving rise right to such suspensionspecific performance. The Company will use reasonable best efforts preceding paragraphs in this Section 2(b) are meant to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, serve only as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant an introduction to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi2(b), are for convenience only, and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed not to be incorporated by reference considered in such Prospectus applying, construing or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of interpreting this paragraphSection 2(b).
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (Illinois Superconductor Corporation)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky United States state securities and takeover laws ("Blue Sky Laws") or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the HolderUnderwriter for purposes of maximizing the proceeds realizable by the Underwriter from such sale or distribution. Such The Company shall cooperate with the Underwriter and take all such other reasonable best efforts by actions in connection therewith in order to expedite or facilitate the disposition of the Registrable Securities. Prior to the thirtieth day from the date hereof, the Company shall include, without limitation, register the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The maximum number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the WarrantPurchase Option by filing with the SEC a post-effective amendment to the Registration Statement pursuant to the Securities Act. Thereafter The Company shall keep such Registration Statement effective until the Purchase Option Expiration Date with regard to at least the maximum number of shares of Common Stock issuable pursuant to the Purchase Option, except to the extent a Blocking Event occurs pursuant to Section 3.3. If a Blocking Event occurs pursuant to Section 3.3, the Company shall use its reasonable best efforts to cause remove such Registration Statement and other filings to be declared effective Blocking Event as soon as possible, and in any event prior to 90 days (or, if including the filing with the SEC elects of a Prospectus supplement or post-effective amendment to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement related Prospectus, as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Actapplicable, copies of the Registration Statementprovided, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictionshowever, to the extent required; provided that the Company shall not be required in connection therewith to disclose any material information relating to a proposed transaction or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred time as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take would generally, based on advice from counsel, disclose such action as may be necessary to amend transaction or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleadingevent.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Common Stock Underwriting Agreement (Triangle Pharmaceuticals Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):Approval Date:
(i) But in any event within 30 days of the filing of the Company’s 2004 10-KApproval Date, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after as soon as Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities and, to the extent practicable, no other securities (the “Registration Statement”), which Registration Statement, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers the resale of such indeterminate number of additional shares of Common Stock as may be issued upon conversion of the Amended and Restated Notes by reason of stock splits, stock dividends or similar transactions. The number of shares of Common Stock initially included in such Registration Statement shall be no less than [______________], unless the sum SEC instructs the Company that a lesser number of (A) shares of Common Stock will be permitted to be included in such Registration Statement, in which case the Shares Registration Statement shall include the number of shares of Common Stock permitted by the SEC. The Company shall, in accordance with applicable SEC rules, regulations, interpretations and (B) practices, amend such Registration Statement or file additional Registration Statements to cover the Warrant Shares number of additional shares of Common Stock that may be issued or issuable upon full exercise pursuant to the terms of the WarrantAmended and Restated Notes in the event that the number of shares of Common Stock initially registered is insufficient or reduced in accordance with applicable SEC rules, regulations, interpretations and practices. Nothing in the preceding sentence will limit the Company’s obligations to reserve shares of Common Stock pursuant to Section 3(d) of the Amended and Restated Notes. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 150 days) following the filing of the Company’s 2004 10-K Approval Date (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue skyBlue Sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit Holders and counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading DaysDays (as defined in the Amended and Restated Notes)) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchangethe Principal Market.
(b) In Set forth below in this Section 2(b) are (I) events that may arise that the event Lenders consider will interfere with the Registration Statement has become effective andfull enjoyment of their rights under this Agreement, afterwardsthe Loan Agreement, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than Amendment Agreement and the Amended and Restated Notes (the “Interfering Events”), and (II) certain remedies applicable in each of these events. Paragraphs (i) 45 days in any 90-day period or through (iiiii) 90 days in any calendar yearof this Section 2(b) describe the Interfering Events, including without limitation by reason of any suspension or stop order with respect provide a remedy to the Registration Statement or Lenders if an Interfering Event occurs. Paragraph (iv) provides, interalia, that the fact that an event has occurred as a result of which Lenders have the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of material fact or omits right 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspensionspecific performance. The Company will use reasonable best efforts preceding paragraphs in this Section 2(b) are meant to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, serve only as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant an introduction to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi2(b), are for convenience only, and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed not to be incorporated by reference considered in such Prospectus applying, construing or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of interpreting this paragraphSection 2(b).
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (Isco International Inc)
Registration Requirements. The Upon request from Holders owning no less than 50% of the Notes, (the “Request for Registration”) the Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the HolderHolders. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):Closing Date:
(i) But in any event within 30 no later than ninety (90) days after the Request for Registration Date (the “Required Filing Date”) or such other date specified in the last sentence of the filing of the Company’s 2004 10-Kthis Section 2(a)(i) for such initial filing, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act (“Rule 415”) on Form S-3 F-1 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the a “Registration Statement”), which Registration Statement, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of the Notes and exercise of the Warrants pursuant to the issuance of Common Stock to pay interest on the Notes or pursuant to the applicable anti-dilution provisions or other adjustment provisions of the Notes and the Warrants. The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise 120% of the Warrant. Thereafter maximum number of shares of Common Stock which may be included in a Registration Statement without exceeding registration limitations imposed by the SEC pursuant to Rule 415 (the “Rule 415 Amount”) in a comment letter addressed to the Company; provided that the Company shall use its commercially reasonable efforts to contest such limitation, but in any event not less than approximately 20,000,000 shares of Common Stock. Thereafter, the Company shall use its best efforts to cause such Registration Statement and other filings to be declared effective effective, as soon as possible (the “Required Effective Date”). The Company shall use its best efforts to ensure that each subsequent Registration Statement is filed as soon as possible, but in no event sooner than six (6) months from the effectiveness of a previously filed Registration Statement. In the event that less than all of the Registrable Securities are included in a Registration Statement as a result of the limitations described in this paragraph, then the Company will (i) reduce on a proportionate basis the number of Registrable Securities of each Holder included in such Registration Statement and in any event prior to 90 days (orii) file additional Registration Statements, if each registering the Rule 415 Amount, seriatim, until all of the Registrable Securities have been registered. The Required Filing Date and the Required Effective Date of each such additional Registration Statement shall be within a reasonable time after the first day such Registration Statement may be filed without objection by the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”)based on Rule 415. Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) If at any time the staff of the Commission takes the position that the offering of some or all of the Registrable Securities in a Registration Statement is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 under the Securities Act or requires any Holder to be named as an “underwriter” (an “SEC Objection”), the Company shall promptly notify the Holders of such SEC Objection and if the Holder shall request, the Company shall use its commercially reasonable efforts to persuade the staff of the Commission 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 and that the Holder is not an “underwriter” (a “Rule 415 Response Effort”). The Holder shall have the right to participate or have its counsel participate in any meetings or discussions with the staff of the Commission regarding the Rule 415 Response Effort and to comment or have its counsel comment on any written submission made to the staff of the Commission with respect to the Rule 415 Response Effort, and to have such comments relayed to the staff of the Commission with the consent of the Company, not to be unreasonably withheld. No such Rule 415 Response Effort shall be made to the staff of the Commission to which the Holder’s counsel reasonably objects. In the event that, despite the Company’s commercially reasonable efforts and compliance with the terms of this Section 2(a)(ii), the staff of the Commission refuses to alter its position, the Company shall (i) remove from the Registration Statement such portion of the Registrable Securities (the “Cut Back Shares”) and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities as the staff of the Commission may require to assure the Company’s compliance with the requirements of Rule 415; provided, however, that the Company shall not agree to name any Holder as an “underwriter” in such Registration Statement without the prior written consent of such Holder (collectively, the “SEC Restrictions”). To eliminate any ambiguity, delay caused by a refusal by a Holder to be named as an underwriter shall be deemed to be part of a Rule 415 Response Effort. Notwithstanding any other provision of this Agreement to the contrary, no liquidated damages shall accrue pursuant to Section 2(c) during the period of any Rule 415 Response Effort or (ii) on or as to any Cut Back Shares until such time as the Company is able, using commercially reasonable efforts, to cause such additional Registration Statement or Registration Statements to become effective with respect to the Cut Back Shares in accordance with any SEC Restrictions (such date, the “Restriction Termination Date”).
(iii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iiiiv) Furnish to each Holder that has Registrable Securities included in a Registration Statement such numbers of copies of a current prospectus conforming with the requirements of the Securities Act, copies of the such Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(ivv) Register and qualify the securities covered by such Registration Statement under the securities or “blue skyBlue Sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(vvi) Notify promptly each Holder immediately that has Registrable Securities included in a Registration Statement of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holderevent) of which the Company has knowledge as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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 existingexisting (each an “Event”), and use its reasonable best efforts to promptly update and/or correct such prospectus. Each Holder will hold in confidence and will not make any disclosure of any such Event and any related information disclosed by the Company.
(vivii) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the any Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed and prepare and file any required filings with such principal any exchange or market where the Common Shares are traded.
(ix) Take all steps reasonably necessary to enable Holders to avail themselves of the prospectus delivery mechanism set forth in Rule 153 (or exchangesuccessor thereto) under the Act.
(x) Take all steps reasonably necessary to keep public information available as those terms are understood and defined in Rule 144 under the Securities Act.
(b) In Notwithstanding the event the Registration Statement has become effective andobligations under Section 2(a)(vii) or any provision of this Agreement, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than if (i) 45 days in any 90-day period the good faith judgment of the Company, following consultation with legal counsel, it would be detrimental to the Company and its stockholders for resales of Registrable Securities to be made pursuant to a Registration Statement due to the existence of a material development or potential material development involving the Company that the Company would be obligated to disclose in the Registration Statement, which disclosure would be premature or otherwise inadvisable at such time or would have a material adverse effect upon the Company and its stockholders, or (ii) 90 days in any calendar yearthe good faith judgment of the Company, including without limitation by reason it would adversely affect or require premature disclosure of the filing of a Company-initiated registration of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result class of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 existingits equity securities, then the Company shall take such action as may be necessary will have the right to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such one period of time asnot more than 10 calendar days in any 12 month period, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of but only if the Company reasonably concludes, after consultation with outside legal counsel, that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company failure to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by as such would create a Holder holding any Registrable Securitiesmaterial liability or violation under applicable securities laws or regulations.
Appears in 1 contract
Samples: Registration Rights Agreement (Coastal Pacific Mining Corp)
Registration Requirements. The Company shall use its reasonable diligent best ------------------------- efforts to effect the registration of the resale of the Registrable Securities contemplated by the Warrant, and if applicable, the Additional Warrant (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the HolderInvestor for purposes of maximizing the proceeds realizable by the Investor from such sale or distribution. Such reasonable best efforts by the Company shall include, include without limitation, limitation the following:
(a) The Company shall, as expeditiously as possible after Subject to the filing terms and conditions of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectivelythis Registration Rights Agreement, the “Company’s 2004 10-K”):
Company shall file with the Commission (i) But in any event within 30 no later than thirty (30) days from the date of the filing execution of the Company’s 2004 10-Kthis Registration Rights Agreement, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act for the registration of the resale by the Investor of the Registrable Securities to be issued upon exercise of the Warrant (or in the event that "Warrant Registration Statement") which Warrant Registration Statement shall have been declared effective by the Company is ineligible to use such formCommission no later than June 2, such other form as 1997, and (ii) no later than thirty (30) days from the Company is eligible to use date of the issuance of the Additional Warrant, a registration statement on Form S-3 under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to for the Company) covering resales registration of the resale by the Holders as selling stockholders (not underwriters) Investor of the Registrable Securities to be issued upon exercise of the Additional Warrant (the “"Additional Warrant Registration Statement”). The number of shares of Common Stock initially included in such ") which Additional Warrant Registration Statement shall be no less than have been declared effective by the sum Commission within 120 days of the date of issuance of the Additional Warrant. The Warrant Registration Statement and the Additional Warrant Registration Statement are each referred to herein as a "Registration Statement". Furthermore, at the time of each Registration Statement filing, the Company shall file (A) such blue sky filings as shall have been requested by the Shares Investor; and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other any required filings to be declared effective as soon as possible, and in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and National Association of Securities Dealers, Inc. or exchange or market where the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purposeShares are traded. The Company shall use its reasonable best efforts to prevent have all filings declared effective as promptly as practicable.
(i) If the Company (A) fails to file the Warrant Registration Statement complying with the requirements of this Registration Rights Agreement within thirty (30) days from the date hereof or if the Warrant Registration Statement has not become effective on or before June 2, 1997 or (B) fails to file the Additional Warrant Registration Statement complying with the requirements of this Registration Rights Agreement within thirty (30) days of the issuance of the Additional Warrant or if such Additional Warrant Registration Statement has not become effective within 120 days of the issuance of the Additional Warrant, the Investor shall have, in addition to and without limiting any stop order andother rights it may have at law, if any stop order is issuedin equity or under the Investor Agreement, or this Registration Rights Agreement (including the right to obtain specific performance), the lifting thereof at right to receive, as liquidated damages, the earliest possible timepayments as provided in subparagraph (ii) of this section.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(bii) In the event the Company fails to obtain the effectiveness of a Registration Statement has become effective andwithin the time period set forth in Section 2(a), afterwardsthe Company shall pay to the Investor an amount equal to $15,000, any Holder’s ability to sell Registrable Securities under in cash, for each thirty (30) day period following the date by which such Registration Statement is suspended was required to have been declared effective (which payment shall be pro-rata for more any period of less than thirty (i30) 45 days days). In addition to the foregoing, in any 90-the event the Company fails to maintain the effectiveness of a Registration Statement (or the use of the underlying prospectus) throughout the period set forth in Section 5(a), other than temporary suspensions as set forth in Section 5A, the Company shall pay to the Investor an amount equal to $7,500, in cash, for each thirty (30) day period or in which a suspension has occurred (iiwhich payment shall be pro-rata for any period of less than thirty (30) 90 days in any calendar year, including without limitation by reason of any suspension or stop order days). Such liquidated damages amount shall not be payable with respect to suspensions of the effectiveness of a Registration Statement (or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 use of the circumstances then existing, then underlying prospectus) in accordance with Section 5A although any such suspensions shall be counted towards the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make temporary suspensions allowed by the statements not misleadingpreceding sentence.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other reasonable actions as the Holder or the underwriters participating in such offering and sale may reasonably request connection therewith in order to expedite or facilitate the disposition of such offering Registrable Securities (the Investor may, at its option, require that any or all of the representations, warranties and sale other than covenants of the Company in such actions which are disruptive agreements also be made to and for the benefit of the Investor) and in such connection:
(i) cause to be delivered to the Company sellers of Registrable Securities opinions of counsel to the Company, dated the effective date of the Registration Statement (which counsel, and opinions (in form, scope and substance), shall be reasonably satisfactory to the appointed representative or require significant management availability.counsel of the Investor), addressed to the Investor covering matters reasonably requested by the Investor;
(eii) cause to be delivered, immediately prior to the effectiveness of the Registration Statement, a "comfort" letter from the Company's independent certified public accountants addressed to the Investor stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable published rules and regulations thereunder, and otherwise in customary form and covering such financial and accounting matters as are reasonably requested by the Investor;
(iii) the Company shall deliver such documents and certificates as may be reasonably requested by the Investor to evidence compliance with the Investor's request, if any, that any or all representations, warranties and covenants of the Company made in the agreements referred to in the introductory paragraph of (c) above were also made to the benefit of the Investor and with any other agreement entered into by the Company;
(d) The Company shall make available for inspection by a representative or representatives of the HoldersInvestor, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwritersuch Investor, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closingsuch purposes, pertinent corporate documents and properties of the Company, and cause the Company’s 's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties . The Investor will agree to keep all non-public information supplied to it confidential until such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only included in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (GRC International Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):date hereof:
(i) But in any event within 30 days of the filing of the Company’s 2004 10-Kon or prior to December 4, 2000, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the CompanyAct) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities and no other securities (the “except shares of Common Stock listed on Schedule A attached hereto) ("Registration Statement”"). The number of shares of Common Stock initially included in such Registration Statement shall be no less than 400,000 plus the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrantshares listed on Schedule A attached hereto. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days (orFebruary 15, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”)2001. Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” "Blue Sky" laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) 3 full Trading Daysbusiness days) prior to each filing filing, and shall not file any document in a form to which such counsel reasonably objects and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed and prepare and file any required filings with such principal the Nasdaq National Market or any exchange or market where the Common Shares are traded.
(ix) Take all steps necessary to enable Holders to avail themselves of the prospectus delivery mechanism set forth in Rule 153 (or exchangesuccessor thereto) under the Act.
(b) In Set forth below in this Section 2(b) are (I) events that may arise that the event Investors consider will interfere with the Registration Statement has become effective andfull enjoyment of their rights under this Agreement and the Repurchase Agreement (the "Interfering Events"), afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than and (II) certain remedies applicable in each of these events. Paragraphs (i) 45 days in any 90-day period or through (iiiii) 90 days in any calendar yearof this Section 2(b) describe the Interfering Events, including without limitation by reason of any suspension or stop order with respect provide a remedy to the Registration Statement or Investors if an Interfering Event occurs and provide that the fact Investors may require that an event has occurred the Company repurchase outstanding Common Shares at a specified price if certain Interfering Events are not timely cured. Paragraph (iv) provides, inter alia, that if default adjustments required as a result the remedy in the case of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 certain of the circumstances then existingInterfering Events are not provided when due, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of Investors to redeem outstanding Common Shares at a specified price. Paragraph (v) provides, inter alia, that the Commission or (ii) it is determined in good faith by Investors have the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company right to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspensionspecific performance. The Company will use reasonable best efforts preceding paragraphs in this Section 2(b) are meant to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, serve only as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant an introduction to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi2(b), are for convenience only, and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed not to be incorporated by reference considered in such Prospectus applying, construing or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of interpreting this paragraphSection 2(b).
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Registration Requirements. The Company shall use its commercially reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the HolderInvestor. Such commercially reasonable best efforts by the Company shall include, without limitation, include the following:
(a) The Company shall, will as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-Kpossible, prepare and file with the Commission a registration statement with (the Commission pursuant to Rule 415 under the Securities Act "Registration Statement") on Form S-3 under the Securities Act (or in the event that if use of such form is then available to the Company is ineligible pursuant to use such formthe rules of the Commission and, if not, on such other form as promulgated by the Commission for which the Company is eligible to use under then qualifies and that counsel for the Securities Act provided that such other Company shall deem appropriate and which form shall be converted into an S-3 promptly after Form S-3 becomes available to for the Company) covering resales by the Holders as selling stockholders (not underwriters) resale of the Registrable Securities (to be registered thereunder in accordance with the “Registration Statement”provisions of this Agreement and in accordance with the intended method of distribution of such Registrable Securities). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares , and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its commercially reasonable best efforts to cause such filed Registration Statement and other filings to be become effective by the Effectiveness Deadline. The "Effectiveness Deadline" shall mean, 90 days from the date of this Agreement. In the event the Registration Statement shall not have been declared effective as soon as possible, and in any event prior to 90 days (or, if by the SEC elects to review Commission by the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond Investor shall have the right to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at terminate the earliest possible dateFinancing Agreement. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare will as expeditiously as reasonably possible prepare and file with the SEC Commission such amendments and supplements to such the Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such the Registration Statement effective at all times during for a period of not less than: (i) in the case of a non-underwritten offering of Registrable Securities, until there shall no longer be any Registrable Securities or (ii) with respect to an underwritten offering of Registrable Securities, until the completion of the distribution of Registrable Securities covered by the Registration Period Statement (but not before the expiration of the period referred to in Section 4(3) of the Securities Act and Rule 174 thereunder, if applicable) or such longer period as defined below)any underwriter in such offering may be required to deliver a prospectus in connection with resales of such securities, and, during such period, and the Company will comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company securities covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated during such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements period in accordance with the SEC on intended methods of disposition by the same day on which Investor as set forth in the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Registration Requirements. (a) No later than fifteen (15) business days following the Closing Date, the Company shall file with the SEC one or more registration statements on Form S-3 (together with the prospectus included therein, a "REGISTRATION STATEMENT") pursuant to Rule 415 of the Securities Act in order to register with the SEC the continuous resale by the Purchasers, from time to time, of the Shares through the Nasdaq NMS or the facilities of any national securities exchange on which Common Stock is then traded, or in privately-negotiated transactions. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon thereafter as possible, possible and in any event prior within sixty (60) days thereafter. Each Purchaser agrees to 90 days (or, if the SEC elects furnish promptly to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond in writing all information required from time to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity time to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require disclosed in order to facilitate make the disposition of Registrable Securities owned information previously furnished to the Company by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall holder not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchangemisleading.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take pay all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period Expenses (as defined below)) in connection with any registration, andqualification or compliance hereunder, during such period, comply with the provisions of the Securities Act with respect and each Purchaser shall pay all Selling Expenses (as defined below) and other expenses that are not Registration Expenses relating to the disposition of all Registrable Securities of the Company covered Shares resold by such Registration StatementPurchaser. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K"REGISTRATION EXPENSES" shall mean all expenses, Form 10-Q or Form 8-K or any analogous report under the 1934 Actexcept for Selling Expenses, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing incurred by the Company that in complying with the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the registration provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securitiesherein described, including, without limitation, information with respect all registration, qualification and filing fees, printing expenses, escrow fees, fees and disbursements of counsel for the Company, blue sky fees and expenses and the expense of any special audits incident to or required by any such registration. "SELLING EXPENSES" shall mean selling commissions, underwriting fees and stock transfer taxes applicable to the number Shares and all fees and disbursements of Registrable Securities being offered or sold, the purchase price being paid therefor and counsel for any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable SecuritiesPurchaser.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (North American Scientific Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the HolderPurchaser. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The As soon as practicable, but in no event later than six months from the Closing Date (the “Required Filing Date”) (provided, however, that in the event that the Company shall, as expeditiously as possible after is informed by the filing of Commission that the Report on Form 10-K for the year ended December 31, 2004, including the filing Registration Statement is deemed to be part of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of serial registration covering the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectivelysecurities, the “Company’s 2004 10-K”):Purchaser agrees to extend the Required Filing Date to such period so that the Company may comply with the Commission) the Company shall:
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act (“Rule 415”) on Form S-3 S-1 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders Purchasers as selling stockholders (not underwriters) of the Registrable Securities (the a “Registration Statement”), which Registration Statement, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such number of additional shares of Common Stock as may become issuable upon the exercise of the Warrants or pursuant to the applicable anti-dilution provisions or other adjustment provisions of the Warrants. The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise 120% of the Warrant. Thereafter maximum number of shares of Common Stock which may be included in a Registration Statement without exceeding registration limitations imposed by the SEC pursuant to Rule 415 (the “Rule 415 Amount”) in a comment letter addressed to the Company; provided that the Company shall use its commercially reasonable efforts to contest such limitation, but in any event not less than approximately 5,000,000 shares of Common Stock. Thereafter, the Company shall use its best efforts to cause such Registration Statement and other filings to be declared effective effective, as soon as possible (the “Required Effective Date”). The Company shall use its best efforts to ensure that each subsequent Registration Statement is filed as soon as possible, but in no event sooner than six (6) months from the effectiveness of a previously filed Registration Statement. In the event that less than all of the Registrable Securities are included in a Registration Statement as a result of the limitations described in this paragraph, then the Company will (i) reduce on a proportionate basis the number of Registrable Securities of each Purchaser included in such Registration Statement and in any event prior to 90 days (orii) file additional Registration Statements, if each registering the Rule 415 Amount, seriatim, until all of the Registrable Securities have been registered. The Required Filing Date and the Required Effective Date of each such additional Registration Statement shall be within a reasonable time after the first day such Registration Statement may be filed without objection by the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”)based on Rule 415. Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date.
(ii) If at any time the staff of the Commission takes the position that the offering of some or all of the Registrable Securities in a Registration Statement is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 under the Securities Act or requires any Investor to be named as an “underwriter” (an “SEC Objection”), the Company shall promptly notify the Purchasers of such SEC Objection and if the Investor shall request, the Company shall use its commercially reasonable efforts to persuade the staff of the Commission 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 and that the Investor is not an “underwriter” (a “Rule 415 Response Effort”). The Investor shall have the right to participate or have its counsel participate in any meetings or discussions with the staff of the Commission regarding the Rule 415 Response Effort and to comment or have its counsel comment on any written submission made to the staff of the Commission with respect to the Rule 415 Response Effort, and to have such comments relayed to the staff of the Commission with the consent of the Company, not to be unreasonably withheld. No such Rule 415 Response Effort shall be made to the staff of the Commission to which the Investor’s counsel reasonably objects. In the event that, despite the Company’s commercially reasonable efforts and compliance with the terms of this Section 2(a)(ii), the staff of the Commission refuses to alter its position, the Company shall provide (i) remove from the Holders Registration Statement such portion of the Registrable Securities (the “Cut Back Shares”) and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities as the staff of the Commission may require to assure the Company’s compliance with the requirements of Rule 415; provided, however, that the Company shall not agree to name any Investor as an “underwriter” in such Registration Statement without the prior written consent of such Investor (collectively, the “SEC Restrictions”). To eliminate any ambiguity, delay caused by a refusal by an Investor to be named as an underwriter shall be deemed to be part of a Rule 415 Response Effort. Notwithstanding any other provision of this Agreement to the contrary, no liquidated damages shall accrue pursuant to Section 2(c) during the period of any Rule 415 Response Effort or (ii) on or as to any Cut Back Shares until such time as the Company is able, using commercially reasonable opportunity efforts, to review cause such additional Registration Statement or Registration Statements to become effective with respect to the portions of Cut Back Shares in accordance with any SEC Restrictions (such date, the “Restriction Termination Date”). If the Company fails to cause any such Registration Statement or amendment or supplement thereto containing disclosure regarding to be declared effective within 90 days following the Holders prior to filingapplicable Restriction Termination Date, liquidated damages shall accrue on the same basis provided above.
(iiiii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders Purchasers of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iiiiv) Furnish to each Holder Purchaser that has Registrable Securities included in a Registration Statement such numbers of copies of a current prospectus conforming with the requirements of the Securities Act, copies of the such Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder Purchaser may reasonably require in order to facilitate the disposition of Registrable Securities owned by such HolderPurchaser.
(ivv) Register and qualify the securities covered by such Registration Statement under the securities or “blue skyBlue Sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(vvi) Notify promptly each Holder immediately Purchaser that has Registrable Securities included in a Registration Statement of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holderevent) of which the Company has knowledge as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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 existingexisting (each an “Event”), and use its reasonable best efforts to promptly update and/or correct such prospectus. Each Purchaser will hold in confidence and will not make any disclosure of any such Event and any related information disclosed by the Company.
(vivii) Notify each Holder immediately Purchaser of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the any Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed and prepare and file any required filings with such principal any exchange or market where the Common Shares are traded.
(ix) Take all steps reasonably necessary to enable Purchasers to avail themselves of the prospectus delivery mechanism set forth in Rule 153 (or exchangesuccessor thereto) under the Act.
(x) Take all steps reasonably necessary to keep public information available as those terms are understood and defined in Rule 144 under the Securities Act.
(b) In Notwithstanding the event the Registration Statement has become effective andobligations under Section 2(a)(vii) or any provision of this Agreement, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than if (i) 45 days in any 90-day period the good faith judgment of the Company, following consultation with legal counsel, it would be detrimental to the Company and its stockholderss for resales of Registrable Securities to be made pursuant to a Registration Statement due to the existence of a material development or potential material development involving the Company that the Company would be obligated to disclose in the Registration Statement, which disclosure would be premature or otherwise inadvisable at such time or would have a material adverse effect upon the Company and its stockholderss, or (ii) 90 days in any calendar yearthe good faith judgment of the Company, including without limitation by reason it would adversely affect or require premature disclosure of the filing of a Company-initiated registration of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result class of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 existingits equity securities, then the Company shall take such action as may be necessary will have the right to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such one period of time asnot more than 10 calendar days in any 12 month period, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of but only if the Company reasonably concludes, after consultation with outside legal counsel, that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company failure to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by as such would create a Holder holding any Registrable Securitiesmaterial liability or violation under applicable securities laws or regulations.
Appears in 1 contract
Samples: Registration Rights Agreement (Clean Power Technologies Inc.)
Registration Requirements. The Company (a) ASSAC shall use its reasonable best efforts to effect prepare and file with the registration of United States Securities and Exchange Commission (the “SEC”) a “Shelf” Registration Statement covering the resale of the Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415 as promptly as possible after the date hereof but in any event within ninety (including, without limitation, 90) days following the execution date of an undertaking to file post-effective amendments, this Agreement. The Registration Statement shall be on Form S-3 or F-3 (or such other form as may be appropriate qualification under applicable blue sky or other state securities laws in accordance herewith and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner and (including manner of salei) and shall comply in all states reasonably requested material respects with the requirements of the applicable form and include (or incorporate by reference herein) all financial statements required by the Holder. Such reasonable SEC to be filed herewith and (ii) shall contain (unless otherwise directed by the ASSAC Shareholders) substantially the “Plan of Distribution” attached hereto as Annex A. Subject to the terms of this Agreement, ASSAC shall use its best efforts by to (i) cause a Registration Statement to be declared effective under the Company shall include, without limitation, the following:
(a) The Company shall, Securities Act as expeditiously promptly as possible after the filing of the Report on Form 10-K for the year ended December 31thereof, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and but in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requestsDate, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity (ii) to review the portions of any keep such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement continuously effective under the securities or “blue sky” laws of Securities Act until all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”). ASSAC shall telephonically confirm with the SEC effectiveness of a Registration Statement as of 4:00 pm Eastern time on a Trading Day prior to the Effectiveness Date. ASSAC shall immediately notify the ASSAC Shareholders via an Interim Report on Form 6-K and facsimile of the effectiveness of a Registration Statement on the principal securities exchange and/or market same Trading Day that ASSAC telephonically confirms effectiveness with the SEC, which shall be the date requested for effectiveness of a Registration Statement. ASSAC shall file, by 9:30 a.m. Eastern time on the second Trading Day following the date on which the Common Stock initial Registration Statement filed by ASSAC pursuant to this Agreement is then listed and prepare and first declared effective by the SEC, a final Prospectus with the SEC as required by Rule 424. Failure to so notify the ASSAC Shareholders within two Trading Days of such notification of effectiveness or failure to file any required filings with such principal market or exchangea final Prospectus as aforesaid shall be deemed an Event under Section 2(b).
(b) In the event the If (i) ASSAC files a Registration Statement has become without affording the ASSAC Shareholders the opportunity to review and comment on the same as required by Section 3(a) herein; (ii) a Registration Statement filed or required to be filed hereunder is not declared effective andby the SEC by the Effectiveness Date, afterwardsor (iii) after the Effectiveness Date, a Registration Statement ceases for any Holder’s ability reason to sell remain continuously effective as to all Registrable Securities under for which it is required to be effective, or the Registration Statement is suspended ASSAC Shareholders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities for more than 45 consecutive calendar days or more than an aggregate of 90 calendar days during any 12-month period (which need not be consecutive calendar days) (any such failure or breach being referred to as an “Event”, and for purposes of clause (i) 45 days in any 90-day period or (ii) 90 days in any calendar yearthe date on which such Event occurs, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of clause (iii) the Holders’ due diligence examination date on which such 45 or 90 calendar day period, as applicable, is exceeded being referred to as the “Event Date”), then in addition to any other rights the ASSAC Shareholders may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, ASSAC shall pay to the ASSAC Shareholders partial liquidated damages (the “Partial Liquidated Damages”) by delivering to the ASSAC Shareholders a number of Ordinary Shares equal to 1.0% of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested quotient obtained by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder dividing (ix) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, that are not then registered for resale pursuant to an effective Registration Statement by (y) the purchase price being paid therefor and any other terms greater of the offering closing price of ASSAC’s Ordinary Shares as traded on the NYSE Amex (or such other exchange or interdealer quotation system the Ordinary Shares are then primarily traded or quoted, as the case may be) on the date of such payment or $7.50 (or such other Conversion Price then in effect). The parties agree that the maximum aggregate liquidated damages payable to the ASSAC Shareholders under this Agreement shall be 10.0% of the Registrable Securities Estimated NAV (as defined in the applicable Acquisition Agreement). The Partial Liquidated Damages pursuant to be sold in such offering; (ii) as soon as practicable make all required filings the terms hereof shall apply on a pro rata basis for any portion of such prospectus supplement or post-effective amendment after being notified a month prior to the cure of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securitiesan Event.
Appears in 1 contract
Samples: Registration Rights Agreement (Gerova Financial Group LTD)
Registration Requirements. The Company shall use its reasonable diligent best efforts to effect the registration of the resale of the Registrable Securities contemplated by this Registration Rights Agreement (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the HolderHolder for purposes of maximizing the proceeds realizable by the Holder for such sale or distribution. Such reasonable best efforts by the Company shall include, include without limitation, limitation the following:
(a) The Company shall, as expeditiously soon as possible practicable after each date of issuance of Preferred Shares and Warrants under the Subscription Agreement, but in no event later than thirty (30) days after the filing date of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-Keach such issuance, prepare and file (i) a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available Act, subject to the Company) covering resales by consent of the Holders as selling stockholders (not underwriters) holding a majority of the Registrable Securities, which consent will not be unreasonably withheld) covering the Registrable Securities to be registered by the Holder (the “"Registration Statement”"). The number ; (ii) such blue sky filings as shall have been requested by the Holder; and (iii) any required filings with the National Association of shares of Securities Dealers, Inc. or exchange or market where the Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrantis traded. Thereafter Thereafter, the Company shall use its reasonable best efforts to cause have such Registration Statement and other filings to be declared effective as soon promptly as possiblepracticable, and but in any no event prior to 90 later than 120 days (or, if after the SEC elects to review the Registration Statement, 180 days) following the filing issuance of the Company’s 2004 10-K relevant Preferred Shares and Warrants.
(the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. i) The Company shall provide file a Registration Statement complying with the Holders reasonable opportunity to review requirements of this Registration Rights Agreement within 30 days from the portions of any date specified in subsection (a) above. If such Registration Statement has not become effective within 120 days from the applicable Closing Date referred to in the Subscription Agreement, the Holder shall have, in addition to and without limiting any other rights it may have at law, in equity or amendment under the Subscription Agreement, the Certificate of Designations, the Warrants or supplement thereto containing disclosure regarding this Registration Rights Agreement (including the Holders prior right to filingspecific performance), the right to receive, as liquidated damages, the payments as provided in subparagraph (ii) of this Section 2(b).
(ii) Prepare and file with If after 120 days from the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Actapplicable Closing Date, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(b) In the event the Registration Statement has become not been declared effective and, afterwards, any Holder’s ability to sell Registrable Securities under by the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 existingSEC, then the Company shall take pay to the Holders an amount equal to 2% of the Purchase Price (as defined in the Certificate of Designations), in cash, for each 30-day period after such action as may be necessary to amend or supplement such Registration Statement or prospectus such 120-day period that such Registration Statement or prospectusis not effective (which payment shall be pro rated for any period less than 30 days) (the "Additional Dividend"). In addition to the foregoing, as so amendedif after 270 days from the applicable Closing Date the Registration Statement has not been declared effective by the SEC, then (i) at the Company's election, the Company may, and (ii) if Company has not used its best efforts to have the Registration Statement declared effective by the SEC, upon demand of such Holder the Company shall, redeem all the Preferred Shares and Warrants held by such Holder at a redemption price equal to the greater of 115% of the Purchase Price and the value of the underlying Common Stock; and further, if subsequent to the aforementioned 270-day period no such redemption occurs, the rate of the Additional Dividend shall not contain an untrue statement of a material fact or omit be increased from 2% to state a material fact required to be stated therein or necessary to make the statements not misleading5%.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other reasonable actions as the Holder or the underwriters participating in such offering and sale may reasonably request connection therewith in order to expedite or facilitate the disposition of such offering Registrable Securities and, in such connection:
(i) make such representations and sale other than such actions which are disruptive warranties to the Holder as the Holder may reasonably request;
(ii) cause to be delivered to the sellers of Registrable Securities opinions of counsel to the Company, dated the effective date of the Registration Statement (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the appointed representative or counsel of the Holders), addressed to the Holders covering the matters customarily covered in opinions requested in secondary underwritten offerings; and
(iii) the Company or require significant management availabilityshall deliver such documents and certificates as may be reasonably requested by the Holders to evidence compliance with clause (i) above and with any customary conditions contained in any agreement entered into by the Company in connection herewith; the foregoing in this paragraph 2(c) shall be done at each closing as and to the extent required thereunder.
(ed) The Company shall make available for inspection by the Holders, representative(s) a representative or representatives of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, each Holder and any attorney or accountant retained by any Holder or underwritersuch Holder, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closingsuch purposes, pertinent corporate documents and properties of the Company, and cause the Company’s 's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties . The Holder will agree to keep all non-public information supplied to it confidential until such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only included in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus unless (a) the disclosure of such information is necessary to be filed pursuant to Rule 424 promulgated avoid or correct a misstatement or omission in any Registration Statement or is otherwise required under the Securities Act, as may be necessary (b) the release of such information is ordered pursuant to keep a final non-appealable subpoena or order from a court or government body of competent jurisdiction, or (c) such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect information has been made generally available to the disposition public other than by disclosure in violation of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on other agreement of which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration StatementHolder has knowledge.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities ActAct and under the rules and regulations applicable in the Province of Ontario) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states states, territories and possessions of the United States reasonably requested by the Holder. The Company shall also use its best efforts to qualify the resale of the Registerable Securities by prospectus under the Securities laws of the Province of Ontario. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):Closing Date:
(i) But in any event within 30 90 days of the filing of the Company’s 2004 10-KClosing, prepare and file (x) a registration statement with the Commission pursuant to the rules and regulations applicable in the home jurisdiction of the Company and Rule 415 467 and Rule 408 under the Securities Act on Form S-3 F-10, F-1 or S-1 or any corresponding successor forms that may be available under the Securities Act (or in the event that the Company is ineligible to use such formforms, such other appropriate form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the CompanyAct) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities and no other securities (the “"Registration Statement”"), which Registration Statement, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers the resale of such indeterminate number of additional shares of Common Stock as may be issued upon conversion of the Debentures and exercise of the Warrants and (y) prior to or contemporaneously with the filing of the Registration Statement, file with the Ontario Securities Commission a preliminary Canadian prospectus (the "Canadian Prospectus" and, collectively referred to with the Registration Statement as the "Registration Statement/Prospectus") covering resales of the same securities as those covered by the Registration Statement under the securities laws of the Province of Ontario and containing the same statements with respect to covering the resale of such indeterminate number of additional shares of Common Stock as may be issued upon conversion of the Debentures and exercise of the Warrants, to the extent permitted by rules and regulations applicable in the Province of Ontario. The number of shares of Common Stock initially included in such Registration Statement Statement/Prospectus shall be no less than the sum of (A) two times the number of Underlying Shares that are then issuable upon conversion of the Debentures (assuming full conversion, respectively, at the then applicable Conversion Price (as defined in the Debentures), and (B) 100% of the Warrant Shares issuable upon full exercise of the WarrantWarrants. Nothing in the preceding sentence will limit the Company's obligations to reserve shares of Common Stock pursuant to Section 3.7 of the Purchase Agreement. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement Statement/Prospectus and other filings to be declared effective as soon as possible, and in any event prior to 90 120 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K Closing Date (the “"Effectiveness Deadline”"). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requestsrequests of the Ontario Securities Commission and the SEC, and shall request acceleration of effectiveness file and obtain a receipt for the final Canadian Prospectus and shall cause the Registration Statement to become effective at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement Statement/Prospectus or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the Ontario Securities Commission and the SEC such amendments and supplements to such Registration Statement Statement/Prospectus and the prospectus prospectuses used in connection with such Registration Statement Statement/Prospectus as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement Statement/Prospectus and notify the Holders of the filing and effectiveness of such Registration Statement Statement/Prospectus and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement/Prospectus, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement Statement/Prospectus under the securities or “blue sky” "Blue Sky" laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement/Prospectus, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Ontario Securities Commission and the Commission or any state securities commission or agency of any stop order (or equivalent action) suspending the effectiveness of the Registration Statement Statement/Prospectus or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order (or equivalent action) and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement Statement/Prospectus and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading DaysDays (as defined in the Debentures)) prior to each filing and will not request acceleration (or its Canadian equivalent) of the Registration Statement Statement/Prospectus without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal Statement/Prospectus with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed listed, including, without limitation, the American Stock Exchange, and prepare and file any required filings with the Principal Market. Notwithstanding anything to the contrary in this Agreement, the Company shall not be required to file or maintain the effectiveness of a Canadian Prospectus following such principal market or exchangetime as the Registrable Securities are freely tradable by the Holders without qualification by prospectus under the securities laws of the Province of Ontario.
(b) In Set forth below in this Section 2(b) are (I) events that may arise that the event Purchaser considers will interfere with the Registration Statement has become effective andfull enjoyment of their rights under this Agreement, afterwardsthe Purchase Agreement, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than Debentures and the Warrants (the "Interfering Events"), and (II) certain remedies applicable in each of these events. Paragraphs (i) 45 days in any 90-day period or through (iiiii) 90 days in any calendar yearof this Section 2(b) describe the Interfering Events, including without limitation by reason of any suspension or stop order with respect provide a remedy to the Registration Statement or Purchaser if an Interfering Event occurs. Paragraph (iv) provides, inter alia, that the fact that an event Purchaser has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of material fact or omits right 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspensionspecific performance. The Company will use reasonable best efforts preceding paragraphs in this Section 2(b) are meant to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, serve only as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant an introduction to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi2(b), are for convenience only, and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed not to be incorporated by reference considered in such Prospectus applying, construing or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of interpreting this paragraphSection 2(b).
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale public sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the HolderHolders. Such reasonable best efforts by the Company shall include, without limitation, include the following:
(a) The filing by the Company shall, as expeditiously as possible no later than thirty (30) days after the filing Closing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement or registration statements (as necessary) with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that such other appropriate registration form if the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the CompanyS-3) covering resales by the Holders as selling stockholders (not underwriters) resale of the Registrable Securities acquired (or underlying the “Securities so acquired) at the Closing ("Registration Statement”Statement(s)"). The number of shares of Common Stock initially included in In the event that such Registration Statement shall be no less than is not filed within thirty (30) days after the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 existingClosing, then the Company shall take such action as may be necessary to amend or supplement such until the Registration Statement or prospectus is filed, pay in cash to each Holder an amount equal to 1.5% of the respective purchase price paid by such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make Holder (the statements not misleading.
(c"Damages") If for each 30 day period beginning on the Holder(s) intend to distribute 31st day following the Closing Date at which the Registrable Securities by means were acquired (the "Default Period") that the Registration Statement has not been filed; provided, however, that the Default Period shall terminate and Damages shall cease to accrue on the date upon which such Registrable Securities may be sold under Rule 144(k) in the reasonable opinion of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive counsel to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of provided that the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, 's transfer agent has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of accepted an instruction from the Company to suspend such use, and prior to suspending effect). If any applicable Default Period is less than 30 days such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company cash payment shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to be on a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.pro rata
Appears in 1 contract
Samples: Stock and Warrant Purchase Agreement (Amtech Systems Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) Closing Date: But in any event within 30 no later than one hundred eighty (180) days after the Closing Date (the “Required Filing Date”) or such other date specified in the last sentence of the filing of the Company’s 2004 10-Kthis Section 2(a)(i) for such initial filing, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act (“Rule 415”) on Form SB-2 or Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such any other form shall be converted into an S-3 promptly after as soon as Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the a “Registration Statement”), which Registration Statement, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of the Bridge Notes and exercise of the Warrants pursuant to the issuance of Common Stock to pay interest on the Bridge Notes or pursuant to the applicable anti-dilution provisions. The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise 100% of the Warrant. Thereafter maximum number of shares of Common Stock which may be included in a Registration Statement without exceeding registration limitations imposed by the stocktickerSEC pursuant to Rule 415 (the “Rule 415 Amount”) in a comment letter addressed to the Company; provided that the Company shall use its commercially reasonable efforts to contest such limitation, but in any event not less than approximately 6,970,664 shares of Common Stock. Thereafter, the Company shall use its best efforts to cause such Registration suchRegistration Statement and other filings to be declared effective effective, as soon as possible, and in any event prior to 90 days no later than the 240th day following the Closing Date (or, or not later than the 270th day following the Closing Date if the SEC elects to review the stocktickerSEC reviews such Registration Statement, 180 days) following or such later date specified in the filing last sentence of this Section 2(a)(i) for the Company’s 2004 10-K effectiveness of a registration statement (the “Effectiveness DeadlineRequired Effective Date”). In the event that less than all of the Registrable Securities are included in a Registration Statement as a result of the limitations described in this paragraph, then the Company will (i) reduce on a proportionate basis the number of Registrable Securities of each Holder included in such Registration Statement and (ii) file additional Registration Statements, each registering the Rule 415 Amount, seriatim, until all of the Registrable Securities have been registered. The Required Filing Date and the Required Effective Date of each such additional Registration Statement shall be thirty (30) days and ninety (90) days, respectively, after the first day such Registration Statement may be filed without objection by the stocktickerSEC based on Rule 415. Without limiting the foregoing, the Company will promptly respond to all SEC stocktickerSEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Notwithstanding the foregoing, if a closing with respect to a Qualified Financing (as defined in the Purchase Agreement) occurs within one hundred fifty (150) days of the Closing Date, then the Company shall may elect in lieu of filing any Registration Statement required by this Agreement to include the Registrable Securities in the registration statements to be filed pursuant to the registration rights granted to the purchasers in the Qualified Financing on a pari passu basis; provided that such registration rights (i) require the filing of an initial registration registering at least the Rule 415 Amount within 30 days of the closing of such Qualified Financing, (ii) require the Company use its best efforts to have such initial registration statement declared effective within 90 days of the closing of such Qualified Financing, (iii) require the filing and effectiveness of subsequent registration statements to occur within 30 days and 90 days, respectively, of the first day such registration statement may be filed without objection by the stocktickerSEC based on Rule 415 and (iv) provide the Holders reasonable opportunity to review the portions for liquidated damages for late registration and non-availability of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filingrequired registration statement which are no less favorable than those contained in Section 2(c) of this Agreement.
(iii) Prepare and file with the SEC stocktickerSEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) . Furnish to each Holder that has Registrable Securities included in a Registration Statement such numbers of copies of a current prospectus conforming with the requirements of the Securities Act, copies of the such Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(ivii) Register and qualify the securities covered by such Registration Statement under the securities or “blue skyBlue Sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(viii) Notify promptly each Holder immediately that has Registrable Securities included in a Registration Statement of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holderevent) of which the Company has knowledge as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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 existingexisting (each an “Event”), and use its reasonable best efforts to promptly update and/or correct such prospectus. Each Holder will hold in confidence and will not make any disclosure of any such Event and any related information disclosed by the Company.
(viiv) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the any Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viiiv) List the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed and prepare and file any required filings with such principal any exchange or market where the Common Shares are traded.
(vi) Take all steps reasonably necessary to enable Holders to avail themselves of the prospectus delivery mechanism set forth in Rule 153 (or exchangesuccessor thereto) under the Act.
(b) In Notwithstanding the event the Registration Statement has become effective andobligations under Section 2(a)(v) or any provision of this Agreement, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than if (i) 45 days in any 90-day period the good faith judgment of the Company, following consultation with legal counsel, it would be detrimental to the Company and its stockholders for resales of Registrable Securities to be made pursuant to a Registration Statement due to the existence of a material development or potential material development involving the Company that the Company would be obligated to disclose in the Registration Statement, which disclosure would be premature or otherwise inadvisable at such time or would have a material adverse effect upon the Company and its stockholders, or (ii) 90 days in any calendar yearthe good faith judgment of the Company, including without limitation by reason it would adversely affect or require premature disclosure of the filing of a Company-initiated registration of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result class of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 existingits equity securities, then the Company shall take such action as may be necessary will have the right to amend or supplement such suspend the use of the Registration Statement or prospectus such for one period of not more than 30 calendar days in any 12 month period, but only if the Company reasonably concludes, after consultation with outside legal counsel, that such the failure to suspend the use of the Registration Statement or prospectus, as so amended, shall not contain an untrue statement of such would create a material fact liability or omit to state a material fact required to be stated therein violation under applicable securities laws or necessary to make the statements not misleadingregulations.
(c) If Set forth below in this Section 2(c) are (I) events that may arise that the Holder(s) intend to distribute Purchasers consider will interfere with the Registrable Securities by means full enjoyment of an underwritingtheir rights under this Agreement, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoingPurchase Agreement, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement Warrants and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under Bridge Notes (the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi“Interfering Events”), and upon notice (II) certain remedies applicable in each of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraphthese events.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (Terra Nostra Resources Corp.)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):Closing Date:
(i) But in any event within 30 60 days of the filing of the Company’s 2004 10-KClosing, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the CompanyAct) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities and no other securities (except shares of Common Stock issuable upon exercise of Warrants issued to Shoreline Pacific Institutional Finance, the “Institutional Division of Financial West Group or its designees and those shares listed on Schedule A attached hereto) ("Registration Statement”"), which Registration Statement, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of the Preferred Shares and exercise of the Warrants. The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) two times the number of Common Shares that are then issuable upon conversion of the Preferred Shares and exercise of the Warrants (Bassuming full conversion or exercise, respectively, at the then applicable Conversion Price (as defined in the Certificate) or Exercise Price (as defined in the Warrant Warrant), and the number of Option Shares then issuable upon (assuming full exercise of such option at such time). Nothing in the Warrantpreceding sentence will limit the Company's obligations to reserve shares of Common Stock pursuant to Section 3.7 of the Purchase Agreement. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 120 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”)Closing Date. Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” "Blue Sky" laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) 3 full Trading DaysDays (as defined in the Certificate)) prior to each filing filing, and shall not file any document in a form to which such counsel reasonably objects and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed and prepare and file any required filings with such principal the Nasdaq National Market or any exchange or market where the Common Shares are traded.
ix) Take all steps necessary to enable Holders to avail themselves of the prospectus delivery mechanism set forth in Rule 153 (or exchangesuccessor thereto) under the Act.
(b) In Set forth below in this Section 2(b) are (I) events that may arise that the event Investors consider will interfere with the Registration Statement has become effective andfull enjoyment of their rights under this Agreement, afterwardsthe Purchase Agreement, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than Warrants and the Certificate (the "Interfering Events"), and (II) certain remedies applicable in each of these events. Paragraphs (i) 45 days in any 90-day period or through (iiiv) 90 days in any calendar yearof this Section 2(b) describe the Interfering Events, including without limitation by reason of any suspension or stop order with respect provide a remedy to the Registration Statement or Investors if an Interfering Event occurs and provide that the fact Investors may require that an event has occurred the Company repurchase outstanding Preferred Shares, Warrants and Option Shares at a specified price if certain Interfering Events are not timely cured. Paragraph (v) provides, inter alia, that if default adjustments required as a result the remedy in the case of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 certain of the circumstances then existingInterfering Events are not provided when due, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules Investors to redeem outstanding Preferred Shares, Warrants and regulations of Option Shares at a specified price. Paragraph (vi) provides, inter alia, that the Commission or (ii) it is determined in good faith by Investors have the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company right to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspensionspecific performance. The Company will use reasonable best efforts preceding paragraphs in this Section 2(b) are meant to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, serve only as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant an introduction to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi2(b), are for convenience only, and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed not to be incorporated by reference considered in such Prospectus applying, construing or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of interpreting this paragraphSection 2(b).
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Registration Requirements. The Company shall use its commercially reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the HolderInvestor. Such commercially reasonable best efforts by the Company shall include, without limitation, include the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, will promptly prepare and file with the Commission a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number ) on Form S-3 (if use of shares of Common Stock initially included in such Registration Statement shall be no less than form is then available to the sum of (A) Company pursuant to the Shares and (B) the Warrant Shares issuable upon full exercise rules of the Warrant. Thereafter Commission and, if not, on such other form promulgated by the Commission for which the Company then qualifies and that counsel for the Company shall deem appropriate and which form shall be available for the resale of the Registrable Securities to be registered thereunder in accordance with the provisions of this Agreement and in accordance with the intended method of distribution of such Registrable Securities), and use its commercially reasonable best efforts to cause such filed Registration Statement and other filings to be declared become effective as soon as possible, and in any event prior to 90 days (or, if by the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the Effectiveness Deadline. The “Effectiveness Deadline”)” shall mean 90 days from the date of this Agreement. Without limiting In the foregoingevent the Registration Statement shall not have been declared effective by the Commission by the Effectiveness Deadline, the Investor shall have the right to terminate the Financing Agreement. The Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare prepare and file with the SEC Commission such amendments and supplements to such the Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such the Registration Statement effective at all times during for a period of not less than: (i) in the case of a non-underwritten offering of Registrable Securities, until there shall no longer be any Registrable Securities or (ii) with respect to an underwritten offering of Registrable Securities, until the completion of the distribution of Registrable Securities covered by the Registration Period Statement (as defined below), and, during such period, comply with but not before the provisions expiration of the period referred to in Section 4(3) of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration StatementRule 174 thereunder, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of such longer period as any suspension under Section 5.2(f), underwriter in such Holder will forthwith discontinue disposition offering may be required to deliver a prospectus in connection with resales of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraphsecurities.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, including without limitation, limitation the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky "Blue Sky" or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the HolderHolder and in all U.S. jurisdictions. Such reasonable best efforts by the Company shall include, without limitation, include the following:
(a) The Company shall, as expeditiously as reasonably possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):Closing Date:
(i) But in any event within 30 days of the filing of the Company’s 2004 10-Kthereafter, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the CompanyAct) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (such registration statement, including any amendments or supplements thereto and prospectuses contained therein, is referred to herein as the “"REGISTRATION STATEMENT"), which Registration Statement”, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such number of additional shares of Common Stock as may become issuable to prevent dilution resulting from stock splits, stock dividends or similar events. The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) 18,000,000, subject to appropriate adjustment for adjustments under Section 8 of the Shares and Debentures, plus (B) two times the number of Warrant Shares issuable upon full exercise of the WarrantWarrants in each case without regard to any limitation on the Investor's ability to convert the Debentures or Warrants. Thereafter Thereafter, the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possiblepracticable, and in any event prior to 90 120 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible dateClosing Date. The Company shall provide the Holders and their legal counsel reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement in accordance with the intended methods of disposition by the seller thereof as set forth in the Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Registration Requirements. (a) The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(ai) The Company shall, as expeditiously as possible after shall prior to the filing of Maturity Date (the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004"REQUIRED FILING DATE") (collectively, the “Company’s 2004 10-K”):
(i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act ("RULE 415") on Form SB-2 or Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such any other form shall be converted into an S-3 promptly after as soon as Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “a "REGISTRATION STATEMENT"), which Registration Statement”, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of the Bridge Notes and exercise of the Warrants pursuant to the issuance of Common Stock to pay interest on the Bridge Notes or pursuant to the applicable anti-dilution provisions. The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise 100% of the Warrant. Thereafter maximum number of shares of Common Stock which may be included in a Registration Statement without exceeding registration limitations imposed by the SEC pursuant to Rule 415 (the "RULE 415 AMOUNT") in a comment letter addressed to the Company; PROVIDED that the Company shall use its commercially reasonable efforts to contest such limitation, but in any event not less than approximately 6,970,664 shares of Common Stock. Thereafter, the Company shall use its best efforts to cause such Registration Statement and other filings to be declared effective effective, as soon as possible, and in any event prior to 90 days no later than the 180th day following the Maturity Date (or, or not later than the 210th day following the Closing Date if the SEC elects to review the reviews such Registration Statement, 180 days) following or such later date specified in the filing last sentence of this Section 4(a)(i) for the effectiveness of a registration statement (the "REQUIRED EFFECTIVE DATE"). In the event that less than all of the Company’s 2004 10-K Registrable Securities are included in a Registration Statement as a result of the limitations described in this paragraph, then the Company will (i) reduce on a proportionate basis the “Effectiveness Deadline”)number of Registrable Securities of each Holder included in such Registration Statement and (ii) file additional Registration Statements, each registering the Rule 415 Amount, SERIATIM, until all of the Registrable Securities have been registered. The Required Filing Date and the Required Effective Date of each such additional Registration Statement shall be thirty (30) days and ninety (90) days, respectively, after the first day such Registration Statement may be filed without objection by the SEC based on Rule 415. Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide Notwithstanding the Holders reasonable opportunity foregoing, if a closing with respect to review a Qualified Financing (as defined in the portions Subscription Agreement) occurs prior to the Maturity Date, then the Holder may elect in lieu of filing any such Registration Statement or amendment or supplement thereto containing disclosure regarding required by this Agreement to include the Holders prior Registrable Securities in the registration statements to filing.
be filed pursuant to the registration rights granted to the purchasers in the Qualified Financing on a PARI PASSU basis; provided that such registration rights (i) require the filing of an initial registration registering at least the Rule 415 Amount within 90 days of the closing of such Qualified Financing, (ii) Prepare and file with require the SEC Company use its best efforts to have such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions initial registration statement declared effective within 90 days of the Act with respect to the disposition filing of all securities covered by such Registration Statement registration statement, and notify the Holders of (iii) require the filing and effectiveness of such Registration Statement subsequent registration statements to occur within 30 days and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements 90 days, respectively, of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and first day such other documents as such Holder registration statement may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance filed without objection by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible timeSEC based on Rule 415.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (HC Innovations, Inc.)
Registration Requirements. The Company shall file by the sixtieth (60th) calendar day after the Closing Date, and use its best efforts to cause to become effective, as promptly as possible and in any event by the one hundred twentieth (120th) calendar day after the Closing Date, a registration statement on Form S-3 under the Securities Act or, if Form S-3 is not then available, on another appropriate form covering the resale of the Registrable Securities, covering 1,100,000 shares and shall take all action necessary to qualify the Registrable Securities under state "blue sky" laws as hereinafter provided. The Company shall use its reasonable diligent best efforts to effect the registration of registrations contemplated by the resale of the Registrable Securities foregoing (including, without limitation, the execution of an undertaking to file amendments and post-effective amendments, appropriate qualification under and compliance with applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) and as would permit or facilitate the resale sale and distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder for purposes of maximizing the proceeds realizable by the Holder, except that the Company shall not be required in connection therewith or as a condition thereof to qualify as a foreign corporation in any jurisdiction in which it is not otherwise required to be so qualified, except the State of New York (if required in order to satisfy New York blue sky laws), from such sale and distribution. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
shall file (i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement statement(s) with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act and the Company shall use its best efforts to qualify for the use of such Form (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the CompanyAct) covering resales by the Holders as selling stockholders (not underwriters) all of the Registrable Securities so to be registered (the “each, a "Registration Statement”"). The ; (ii) within fifteen business days after the Company receives notice from any Holder that the number of shares of Common Stock initially included in such Registrable Securities covered by the Registration Statement shall be no is at any time less than one hundred ten percent (110%) of the sum Minimum Number of Shares, an amendment to the Registration Statement to increase by twenty percent (A20%) the Shares and number of Registrable Securities originally covered by the Registration Statement; (Biii) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective thereafter, as soon promptly as possible, and in any event prior to 90 within thirty 212 calendar days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, after the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at receives notice from any Holder that the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition number of Registrable Securities owned covered by such Holder.
the Registration Statement shall at any time be insufficient to cover one hundred ten percent (110%) of the Minimum Number of Shares, one or more additional registration statements covering two hundred percent (200%) of the Minimum Number of Shares; (iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictionssky filings as shall be reasonably requested to permit such sales, to the extent required; provided provided, however, that the Company shall not be required to register the Registrable Securities in connection therewith or as a condition thereto any jurisdiction that would subject it to qualify to do business or to file a general consent to service of process in any such states jurisdiction where it is not then so subject or jurisdictions.
subject the Company to any tax in any such jurisdiction where it is not then so subject or require the Company to qualify to do business in any jurisdiction where it is not then so qualified; and (v) Notify each Holder immediately required filings with the National Association of Securities Dealers, Inc. ("NASD") or exchange where the happening of any event (but not Shares are traded; all as soon as practicable after the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purposedate hereof. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review have the Registration Statement and all Statement, or such amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each any such additional registration statements and other filings declared effective as soon as may be practicable after filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings in accordance with such principal market or exchangethis paragraph.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an a customary underwriting agreement containing such representations and warranties by with the Company and such other terms and provisionsunderwriter or underwriters, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Companyif any) and take all such other reasonable actions as the Holder or the underwriters participating in such offering and sale may reasonably request connection therewith in order to expedite or facilitate the disposition of such offering Registrable Securities and sale in such connection, the Company shall:
(i) make such representations and warranties to the underwriter or underwriters, if any, in form and substance and scope as are customarily made by issuers to underwriters in secondary underwritten offerings;
(ii) in the case of an underwritten offering, cause to be delivered to the sellers of Registrable Securities and the underwriter or underwriters, if any, opinions of counsel to the Company, dated the effective date (or in the case of an underwritten offering, dated the date of delivery of any Registrable Securities sold pursuant thereto) of the applicable registration statement (which counsel, and opinions (in form, scope and substance), shall be reasonably satisfactory to the managing underwriter or underwriters, if any, and the appointed representative or counsel of the Holder), addressed to the Holder and each underwriter, if any, covering the matters customarily covered in opinions requested in underwritten secondary offerings and, in the case of any 213 underwritten offering, such other than matters as may be reasonably requested by the Holder;
(iii) in the case of an underwritten offering, cause to be delivered, immediately prior to the effectiveness of the applicable Registration Statement (and, in the case of an underwritten offering, at the time of delivery of any Registrable Securities sold pursuant thereto), letters from the Company's independent certified public accountants addressed to the Holder and each underwriter, if any, stating that such actions accountants are independent public accountants within the meaning of the Securities Act and the applicable published rules and regulations thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent certified public accountants delivered in connection with underwritten secondary public offerings;
(iv) if an underwriting agreement is entered into, cause the same to set forth indemnification and contribution provisions and procedures which are disruptive no less favorable to the Holder and the Company than those contemplated by sections 9 and 10 with respect to all parties to be indemnified pursuant to such sections;
(v) deliver such documents and certificates as may be reasonably requested by the Holder of the Registrable Securities being sold or require significant management availabilitythe managing underwriter or underwriters, if any, to evidence compliance with clause (i) above and with any customary conditions contained in the underwriting agreement, if any, or other agreement entered into by the Company; the foregoing in this paragraph 2(b) shall be done at each closing under any such underwriting or similar agreement or as and to the extent required thereunder; provided, however, that the Company shall not be required to effect an underwritten offering of the Registrable Securities on more than one (1) occasion.
(ec) The At least ten (10) business days prior to the anticipated filing thereof with the SEC, the Company shall make available for inspection and review by the HoldersHolder, representative(s) a representative or representatives of all the Holders togetherHolder, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any such Holder or underwriter, any such registration statement or amendment or supplement or any blue sky, NASD or other filing, all 214 financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closingrecords, pertinent corporate documents and properties of the CompanyCompany as they may reasonably request for the purpose, and cause the Company’s 's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement; provided, provided however, that the Holder and its representatives, if any, shall first agree in writing with the Company that any information that is reasonably and in good faith designated by the Company in writing as confidential at the time of delivery of such parties agree information shall be kept confidential by the Holder and its representatives, if any, and that the Holder and its representatives, if any, will use reasonable efforts to cause its representatives and such other persons so to keep such information confidential, unless (i) disclosure of such information is required by court or administrative order or is necessary to respond to inquiries of regulatory authorities, (ii) disclosure of such information is required by law (including any disclosure requirements pursuant to Federal securities laws in connection with the filing of any Registration Statement or the use of any prospectus referred to in this Agreement), (iii) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard by any such person, (iv) such information becomes available to any such person from a source other than the Company and such source, to the knowledge of such persons, is not bound by a confidentiality agreement with the Company, or (v) such information was known to or is developed by such persons without reference to such confidential information of the Company. In the case of any disclosure in clauses (i) and (ii) above, the Holder will use reasonable efforts to give to the Company as much notice as possible prior to such disclosure. In connection with any registration of securities of the Holder hereunder, the Holder shall promptly complete and return to the Company all selling stockholder questionnaires, and otherwise furnish to the Company all information regarding the Holder, reasonably requested by the Company to assist the Company in preparing any Registration Statement, any amendment or supplement thereto, or any blue sky, NASD or other filing to be made in connection therewith.
(d) The Company will keep, to the maximum extent permitted by applicable law, the economic terms of the Debentures and the offering related thereto confidential. If the Company is required by applicable law to file the form of Debenture, any written summary of the material economic terms of the Debentures or any other documents related to the transactions contemplated hereby with the Commission or any other governmental authority, the Company shall, prior to any such 215 filing, (i) notify the Holders, (ii) seek to have the Commission afford confidential treatment to the filing, (iii) permit the Holders the opportunity to review the proposed filing and any requests for confidential treatment, and (iv) accommodate all reasonable comments and requests for changes made by the Holders or their counsel. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect hereby consents to the disposition of all Registrable Securities of the Company covered filing by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence form of Debenture, the Agreement and this Registration Rights Agreement as exhibits to any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities registration statements filed under the Registration Statement until such Holder’s receipt of Securities Act and any Exchange Act Reports (as defined in the copies of Agreement) filed after the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions date of this paragraphRegistration Rights Agreement.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (Palomar Medical Technologies Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):Closing Date:
(i) But in any event within 30 75 days of the filing of the Company’s 2004 10-KClosing, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after as soon as Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities and no other securities (the “"Registration Statement”"), which Registration Statement, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of the Preferred Shares and exercise of the Warrants. The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) two times the number of Common Shares that are then issuable upon conversion of the Preferred Shares and (B) the Warrant Shares number of shares issuable upon full exercise of the Warrants (assuming full conversion or exercise, respectively, at the then applicable Conversion Price (as defined in the Certificate) or Exercise Price (as defined in the Warrant). Nothing in the preceding sentence will limit the Company's obligations to reserve shares of Common Stock pursuant to Section 3.7 of the Purchase Agreement. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 135 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”)Closing Date. Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” "Blue Sky" laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) 5 full Trading DaysDays (as defined in the Certificate)) prior to each filing filing, and shall not file any document in a form to which such counsel reasonably objects and will not request acceleration of the Registration Statement without prior notice to such counsel.
(. viii) List the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed and prepare and file any required filings with such principal the Nasdaq National Market and Pacific Exchange or any exchange or market where the Common Shares are traded.
ix) Take all steps necessary to enable Holders to avail themselves of the prospectus delivery mechanism set forth in Rule 153 (or exchangesuccessor thereto) under the Act.
(b) Set forth below in this Section 2(b) are (I) events that may arise that the Investors consider will interfere with the full enjoyment of their rights under this Agreement, the Purchase Agreement, the Warrants and the Certificate (the "Interfering Events"), and (II) certain remedies applicable in each of these events. Paragraphs (i) through (iv) of this Section 2(b) describe the Interfering Events, provide a remedy to the Investors if an Interfering Event occurs and provide that the Investors may require that the Company repurchase outstanding Preferred Shares and Warrants at a specified price if certain Interfering Events are not timely cured. Paragraph (v) provides, inter alia, that if default adjustments required as the remedy in the case of certain of the Interfering Events are not provided when due, the Company may be required by the Investors to redeem outstanding Preferred Shares and Warrants at a specified price. Paragraph (vi) provides, inter alia, that the Investors have the right to specific performance. The preceding paragraphs in this Section 2(b) are meant to serve only as an introduction to this Section 2(b), are for convenience only, and are not to be considered in applying, construing or interpreting this Section 2(b). i) Delay in Effectiveness of Registration Statement.
(A) In the event the that such Registration Statement has become not been declared effective andwithin 135 days from the Closing Date, afterwards, or the Company at any Holder’s ability time fails to sell issue unlegended Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation as required by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 Article VI of the circumstances then existingPurchase Agreement, then the Company shall take such action pay each Holder a Monthly Delay Payment (as may be necessary to amend defined below) for each 30-day period (or supplement such portion thereof) that effectiveness of the Registration Statement is delayed or prospectus failure to issue such that such unlegended Registrable Securities persists. In addition to the foregoing, if the Registration Statement has not been declared effective within 210 days after the Closing Date, then each Holder shall have the right to sell, at any time after the 210th day after the Closing Date, any or prospectus, as so amended, shall not contain an untrue statement all of a material fact or omit its Preferred Shares and Warrants to state a material fact required the Company for consideration (the "Mandatory Repurchase Price") equal to be stated therein or necessary to make (I) for the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwritingPreferred Shares, the Holder(sgreater of (x) shall so advise 125% of the Company. Any Liquidation Preference of all such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory Preferred Shares being sold to the Company.
, or (dy) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements Liquidation Preference for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive Preferred Shares being sold to the Company or require significant management availability.
(e) The Company shall make available for inspection divided by the Holders, representative(s) of all then applicable Conversion Price multiplied by the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes greater of the Holders’ due diligence examination last closing price of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder Common Stock on (i) who is not the date a financial investor or entity Holder exercises its option pursuant to this Section 2(b) to require repurchase of Preferred Shares or (ii) whothe date on which the event triggering Holder's remedies under this Section 2(b) first occurred, itself or through any affiliatein each case payable in cash and (II) for the Warrants, has any strategic business interest that would reasonably be expected to be in conflict with any business 125% of the Company or its Subsidiaries.
product of (fa) The Company may suspend the use difference between the greater of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, clauses (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by above and the Board of Directors exercise price of the Company that because Warrants, multiplied by (b) the number of valid business reasons (not including the avoidance of Warrants being sold to the Company’s obligations hereunder), it is payable in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible datecash.
(gB) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus As used in connection with such Registration Statementthis Agreement, which prospectus is a "Monthly Delay Payment" shall be a cash payment equal to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions 1% of the Securities Act with respect to the disposition of all Registrable Securities Liquidation Preference of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested Preferred Shares held by a Holder holding any Registrable Securitiesfor the first 30-day period (or portion thereof) that the specified condition in this Section 2(b) has not been fulfilled or the specified deficiency has not been remedied, 2% of such Liquidation Preference for the next 30-day period (or portion thereof) that the specified condition in this Section 2(b) has not been fulfilled or the specified deficiency has not been remedied, and 3% of such Liquidation Preference thereafter for each subsequent 30-day period (or portion thereof) that the specified condition in this Section 2(b) has not been fulfilled or the specified deficiency has not been remedied (prorated in each case as appropriate).
Appears in 1 contract
Samples: Registration Rights Agreement (Genesisintermedia Com Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, including without limitation, limitation the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky "Blue Sky" or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the HolderU.S. jurisdictions. Such reasonable best efforts by the Company shall include, without limitation, include the following:
(a) The Company shall, as expeditiously as reasonably possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):Closing Date:
(i) But in any event within 30 60 days of the filing of the Company’s 2004 10-Kthereafter, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the CompanyAct) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (such registration statement, including any amendments or supplements thereto and prospectuses contained therein, is referred to herein as the “"Registration Statement”"), which Registration Statement, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such number of additional shares of Common Stock as may become issuable to prevent dilution resulting from stock splits, stock dividends or similar events. The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) two times the sum of the number of Common Shares that are as of the date of this Agreement issuable upon conversion of the Debentures (assuming, for purposes of this calculation, that 10,000,000 principal amount of the Subsequent Debentures were issued and outstanding) plus (B) one and one-half times the number of Warrant Shares issuable upon full exercise of the WarrantWarrants (assuming, for purposes of this calculation, that the Option Warrants were issued and outstanding) in each case without regard to any limitation on the Investor's ability to convert the Debentures or Warrants. Thereafter Thereafter, the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possiblepracticable, and in any event prior to 90 120 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible dateClosing Date. The Company shall provide the Holders and their legal counsel reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement in accordance with the intended methods of disposition by the seller thereof as set forth in the Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register Use its best efforts to register and qualify the securities covered by such Registration Statement under the such other securities or “blue sky” "Blue Sky" laws of all domestic U.S. jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereofthereof and any information incorporated or deemed to be incorporated by reference therein) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and and, pursuant to Section 2(f), use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit a single firm of counsel, designated as Holders' counsel to by the Holders of a majority of the Registrable Securities included in the Registration Statement, to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing filing, and will shall not request acceleration of the Registration Statement without prior notice file any document in a form to which such counselcounsel reasonably objects.
(viii) List Use its best efforts to list the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed and prepare and file any required filings with such principal the National Association of Securities Dealers, Inc. or any exchange or market where the Common Stock is then traded.
(ix) If applicable, take all steps necessary to enable Holders to avail themselves of the prospectus delivery mechanism set forth in Rule 153 (or exchangesuccessor thereto) under the Act.
(b) In Set forth below in this Section 2(b) are (I) events that may arise that the event Investors consider will interfere with the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities full enjoyment of their rights under the Registration Statement is suspended for more than Debentures, the Purchase Agreement and this Agreement (the "Interfering Events"), and (II) certain remedies applicable in each of these events. Paragraphs (i) 45 days in any 90-day period or through (iiiv) 90 days in any calendar yearof this Section 2(b) describe the Interfering Events, including without limitation by reason of any suspension or stop order with respect provide a remedy to the Registration Statement or Investors if an Interfering Event occurs and provide that the fact Investors may require that an event has occurred the Company redeem outstanding Debentures at a specified price if certain Interfering Events are not timely cured. Paragraph (vi) provides, INTER ALIA, that if cash payments required as a result the remedy in the case of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 certain of the circumstances then existingInterfering Events are not paid when due, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of Investors to redeem outstanding Debentures at a specified price. Paragraph (viii) provides, INTER ALIA, that the Commission or (ii) it is determined in good faith by Investors have the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company right to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspensionspecific performance. The Company will use reasonable best efforts preceding paragraphs in this Section 2(b) are meant to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, serve only as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant an introduction to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi2(b), are for convenience only, and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed not to be incorporated by reference considered in such Prospectus applying, construing or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of interpreting this paragraphSection 2(b).
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Registration Requirements. The Company shall file, as promptly as ------------ ------------ possible and in any event by the ninetieth (90th) calendar day after the First Closing Date, and use its reasonable best efforts to cause to become effective as promptly as possible, a registration statement on Form S-3 under the Securities Act or, if Form S-3 is not then available, on another appropriate form covering the issuance or the resale of the Registrable Securities, and shall take all action necessary to qualify the Registrable Securities under state "blue sky" laws as hereinafter provided. The Company shall use its reasonable best efforts to effect the registration of registrations contemplated by the resale of the Registrable Securities foregoing (including, without limitation, the execution of an undertaking to file amendments and post-effective amendments, appropriate qualification under and compliance with applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) and as would permit or facilitate the resale sale and distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder for purposes of maximizing the proceeds realizable by the Holder, except that the Company shall not be required in connection therewith or as a condition thereof to qualify as a foreign corporation in any jurisdiction in which it is not otherwise required to be so qualified, except the State of New York (if required in order to satisfy New York blue sky laws), from such sale and distribution. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
shall file (i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement statements with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act and the Company shall use its reasonable best efforts to qualify for the use of such Form (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the CompanyAct) covering resales by the Holders as selling stockholders (not underwriters) all of the Registrable Securities so to be registered (the “each, a "Registration Statement”"). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
; (ii) Prepare and file with the SEC such amendments and supplements blue sky filings as shall be ---------------------- reasonably requested to permit such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Actsales, copies of the Registration Statementprovided, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictionshowever, to the extent required; provided that the Company -------- ------- shall not be required to register the Registrable Securities in connection therewith or as a condition thereto any jurisdiction that would subject it to qualify to do business or to file a general consent to service of process in any such states jurisdiction where it is not then so subject or jurisdictions.
(v) Notify each Holder immediately of subject the happening of Company to any event (but not the substance or details of tax in any such events unless specifically requested by a Holderjurisdiction where it is not then so subject or require the Company to qualify to do business in any jurisdiction where it is not then so qualified; and (iii) required filings with the National Association of Securities Dealers, Inc. ("NASD") or exchange where the Shares are traded; all as a result of which soon as practicable ------ after the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purposedate hereof. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review have the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required other filings with such principal market or exchangedeclared effective as soon thereafter as may be practicable.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an a customary underwriting agreement containing such representations and warranties by with the Company and such other terms and provisionsunderwriter or underwriters, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Companyif any) and take all such other reasonable actions as the Holder or the underwriters participating in such offering and sale may reasonably request connection therewith in order to expedite or facilitate the disposition of such offering Registrable Securities and sale in such connection, if the Registrable Securities are to be sold in an underwritten offering, the Company shall:
(i) make such representations and warranties to the underwriter or underwriters, if any, in form and substance and scope as are customarily made by issuers to underwriters in secondary underwritten offerings; (ii) cause to be delivered to the sellers of Registrable Securities and the underwriter or underwriters, if any, opinions of counsel to the Company, dated the effective date (or in the case of an underwritten offering, dated the date of delivery of any Registrable Securities sold pursuant thereto) of the applicable registration statement (which counsel, and opinions (in form, scope and substance), shall be reasonably satisfactory to the managing underwriter or underwriters, if any, and the appointed representative or counsel of the Holder), addressed to the Holder and each underwriter, if any, covering the matters customarily covered in opinions requested in underwritten secondary offerings and, in the case of any underwritten offering, such other than matters as may be reasonably requested by the Holder; (iii) cause to be delivered, immediately prior to the effectiveness of the applicable Registration Statement (and, in the case of an underwritten offering, at the time of delivery of any Registrable Securities sold pursuant thereto), letters from the Company's independent certified public accountants addressed to the Holder and each underwriter, if any, stating that such actions accountants are independent public accountants within the meaning of the Securities Act and the applicable published rules and regulations thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent certified public accountants delivered in connection with underwritten secondary public offerings; (iv) if an underwriting agreement is entered into, cause the same to set forth indemnification and contribution provisions and procedures which are disruptive no less favorable to the Holder and the Company than those contemplated by Sections 7 and 8 hereof with respect to all parties to be indemnified pursuant to such sections; (v) deliver such documents and certificates as may be reasonably requested by the Holder of the Registrable Securities being sold or require significant management availabilitythe managing underwriter or underwriters, if any, to evidence compliance with clause (i) above and with any customary conditions contained in the underwriting agreement, if any, or other agreement entered into by the Company; the foregoing in this paragraph 2(b) shall be done at each closing under any such underwriting or similar agreement or as and to the extent required thereunder; provided, however, that the Company shall not be required to effect -------- ------- an underwritten offering of the Registrable Securities on more than one (1) occasion.
(ec) The At least ten (10) business days prior to the anticipated filing thereof with the SEC, the Company shall make available for inspection and review by a representative designated by a majority in interest of the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any such Holder or underwriter, any such registration statement or amendment or supplement or any blue sky, NASD or other filing, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closingrecords, pertinent corporate documents and properties of the CompanyCompany as they may reasonably request for the purpose, and cause the Company’s 's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement; provided, provided however, that the Holder shall first agree in writing with -------- ------- the Company that any information that is reasonably and in good faith designated by the Company in writing as confidential at the time of delivery of such parties agree information shall be kept confidential by the Holder and that the Holder will use reasonable efforts to cause its representatives and such other persons so to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder unless (i) who disclosure of such information is not a financial investor required by court or entity administrative order or is necessary to respond to inquiries of regulatory authorities, (ii) who, itself disclosure of such information is required by law (including any disclosure requirements pursuant to Federal securities laws in connection with the filing of any Registration Statement or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used referred to in connection this Registration Rights Agreement), (iii) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard by any such person, (iv) such information becomes available to any such person from a source other than the Company and such source, to the best knowledge of such persons, is not bound by a confidentiality agreement with the Registration Statement only in the eventCompany, and for such period of time as, or (iv) such a suspension information was known to or is required developed by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance such persons without reference to such confidential information of the Company’s obligations hereunder), it is in . No Registration Statement or amendment thereto will be filed without the best interests prior consent of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) Holders of a majority of the Company provides the Holders with written notice of such suspensionoutstanding Registrable Securities or their designated representative, which notice need consent shall not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible datebe unreasonably withheld.
(gd) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a the Registration Statement Statement(s) and the prospectus prospectus(es) used in connection with such the Registration StatementStatement(s), which prospectus is prospectus(es) are to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such the Registration Statement Statement(s) effective at all times during the Registration Period (as defined below)Period, and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement(s) until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration StatementStatement(s). In the case event the number of amendments and supplements to shares available under a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant is insufficient to this Section 3(h)) by reason cover all of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 ActRegistrable Securities, the Company shall have incorporated such report by reference into such amend the Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or shall file such amendments or supplements with both, so as to cover all of the SEC Registrable Securities, in each case, as soon as practicable, but in any event within fifteen (15) days after the necessity therefor arises (based on the same day market price of the Common Stock and other relevant factors on which the 1934 Act report is filed which created the requirement for the Company reasonably elects to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(virely), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders shall use its reasonable best efforts to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) cause such amendment and/or new Registration Statement to become effective as soon as practicable incorporate in following the filing thereof. For purposes of the foregoing provision, the number of shares available under a prospectus supplement or post-effective amendment such information as a Holder reasonably requests Registration Statement shall be deemed "insufficient to be included therein relating to cover all of the sale and distribution of Registrable Securities, including, without limitation, information with respect to " if at any time the number of Registrable Securities being offered issued or sold, the purchase price being paid therefor and any other terms issuable upon conversion of the offering Preferred Stock is greater than the quotient determined by dividing (i) the number of the Registrable Securities to be sold in shares of Common Stock available for resale under such offering; Registration Statement by (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified 1.10. For purposes of the matters to calculation set forth in the foregoing sentence, any restrictions on the convertibility of the Preferred Stock shall be incorporated disregarded and such calculations shall assume that the Preferred Stock is then convertible into shares of Common Stock at the then prevailing Conversion Rate (as defined in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securitiesthe Certificate of Designation).
Appears in 1 contract
Samples: Registration Rights Agreement (Borland International Inc /De/)
Registration Requirements. The Company shall file, as promptly as possible and in any event by the twenty-fifth (25th) calendar day after the First Closing Date, and use its best efforts to cause to become effective, as promptly as possible and in any event by the seventy-fifth (75th) calendar day after the First Closing Date, a registration statement on Form SB-2 under the Securities Act or, if Form SB-2 is not then available, on another appropriate form covering the resale of the Registrable Securities, and shall take all action necessary to qualify the Registrable Securities under state "blue sky" laws as hereinafter provided. The Company shall use its reasonable diligent best efforts to effect the registration of registrations contemplated by the resale of the Registrable Securities foregoing (including, without limitation, the execution of an undertaking to file amendments and post-effective amendments, appropriate qualification under and compliance with applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) and as would permit or facilitate the resale sale and distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder for purposes of maximizing the proceeds realizable by the Holder, except that the Company shall not be required in connection therewith or as a condition thereof to qualify as a foreign corporation in any jurisdiction in which it is not otherwise required to be so qualified, except the State of New York (if required in order to satisfy New York blue sky laws), from such sale and distribution. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
shall file (i) But in any event within 30 days of the filing of the Company’s 2004 10-K, prepare and file a registration statement statements with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 SB-2 under the Securities Act and the Company shall use its best efforts to qualify for the use of such Form (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the CompanyAct) covering resales by the Holders as selling stockholders (not underwriters) all of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings so to be declared effective as soon as possibleregistered (each, and in any event prior to 90 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K (the “Effectiveness Deadline”a "REGISTRATION STATEMENT"). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
; (ii) Prepare and file with the SEC such amendments and supplements blue sky filings as shall be reasonably requested to permit such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Actsales, copies of the Registration StatementPROVIDED, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictionsHOWEVER, to the extent required; provided that the Company shall not be required to register the Registrable Securities in connection therewith or as a condition thereto any jurisdiction that would subject it to qualify to do business or to file a general consent to service of process in any such states jurisdiction where it is not then so subject or jurisdictions.
(v) Notify each Holder immediately of subject the happening of Company to any event (but not the substance or details of tax in any such events unless specifically requested by a Holderjurisdiction where it is not then so subject or require the Company to qualify to do business in any jurisdiction where it is not then so qualified; and (iii) required filings with the National Association of Securities Dealers, Inc. ("NASD") or exchange where the Shares are traded; all as a result of which soon as practicable after the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purposedate hereof. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review have the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required other filings with such principal market or exchangedeclared effective as soon thereafter as may be practicable.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than At least two (i2) 45 business days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect prior to the Registration Statement or anticipated filing thereof with the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwritingSEC, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection and review by the HoldersHolder, representative(s) a representative or representatives of all the Holders togetherHolder, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any such Holder or underwriter, any such registration statement or amendment or supplement or any blue sky, NASD or other filing, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closingrecords, pertinent corporate documents and properties of the CompanyCompany as they may reasonably request for the purpose, and cause the Company’s Company s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement; PROVIDED, provided HOWEVER, that the Holder shall first agree in writing with the Company that any information that is reasonably and in good faith designated by the Company in writing as confidential at the time of delivery of such parties agree information shall be kept confidential by the Holder and that the Holder will use reasonable efforts to cause its representatives and such other persons so to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder unless (i) who disclosure of such information is not a financial investor required by court or entity administrative order or is necessary to respond to inquiries of regulatory authorities, (ii) who, itself disclosure of such information is required by law (including any disclosure requirements pursuant to Federal securities laws in connection with the filing of any Registration Statement or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used referred to in connection this Registration Rights Agreement), (iii) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard by any such person, (iv) such information becomes available to any such person from a source other than the Company and such source, to the knowledge of such persons, is not bound by a confidentiality agreement with the Registration Statement only in the eventCompany, and for such period of time as, or (iv) such a suspension information was known to or is required developed by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance such persons without reference to such confidential information of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (Cortex Pharmaceuticals Inc/De/)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):possible:
(i) But in any event within 30 60 days of the filing of the Company’s 2004 10-KClosing, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) the Shares and (B) the Warrant Shares issuable upon full exercise of the Warrant. Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 120 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K Closing (the “Effectiveness Deadline”). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Daysdays on which there is trading on the Principal Market or such other market or exchange on which the Common Stock is then principally traded) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h5(g)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Securities Purchase and Registration Rights Agreement (Star Scientific Inc)
Registration Requirements. (a) On or prior to the Filing Date, the Company shall prepare and file with the Commission a Registration Statement (the "Initial Registration -------------------- Statement") which shall cover all Registrable Securities for an offering to be ------ made on a continuous basis pursuant to a "Shelf" registration statement under Rule 415. The Initial Registration Statement shall be on Form S-3 or any successor form (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 herewith, subject to the reasonable consent of the original Holders of the Registrable Securities). The Company shall use its reasonable best efforts to effect cause the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking Initial Registration Statement to file post-be declared effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) Act as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously promptly as possible after the filing of the Report on Form 10-K for the year ended December 31thereof, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):
(i) But but in any event within 30 days of on or prior to the filing of the Company’s 2004 10-KEffectiveness Date, prepare and file a registration statement with the Commission pursuant to Rule 415 keep such Initial Registration Statement continuously effective under the Securities Act on Form S-3 under until the date which is four years after the date that such Initial Registration Statement is declared effective by the Commission or such earlier date when all Registrable Securities Act (covered by such Initial Registration Statement have been sold or in the event that may be sold without volume restrictions pursuant to Rule 144 as determined by counsel to the Company is ineligible pursuant to use such forma written opinion letter, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after Form S-3 becomes available addressed to the Holders and the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities 's transfer agent to such effect (the “Registration Statement”"Effectiveness Period"). The number of shares of -------------------- Common Stock initially included in such the Initial Registration Statement shall be no less than 100% of the sum aggregate number of shares of Common Stock that are then issuable upon conversion of the Preferred Stock (based on the Conversion Price (as defined in the Preferred Stock ) as would then be in effect at such time) and the exercise of the Warrants, without regard to any limitation on the Investor's ability to convert the Preferred Stock or exercise the Warrants.
(b) In addition to the Initial Registration Statement, if the Holders of a majority of the Registrable Securities covered by a Registration exhibit 10.3, page 4 Statement so elect on or after September 30, 1999, an offering of Registrable Securities pursuant to such Registration Statement may be effected on no more than two (2) occasions in the form of an Underwritten Offering of at least one million shares of Common Stock. In such event, and if the managing underwriters advise the Company and such Holders in writing that in their opinion the amount of Registrable Securities proposed to be sold in such Underwritten Offering exceeds the amount of Registrable Securities which can be sold in such Underwritten Offering, there shall be included in such Underwritten Offering the amount of such Registrable Securities which in the opinion of such managing underwriters can be sold, and such amount shall be allocated pro rata among the --- ---- Holders proposing to sell Registrable Securities in such Underwritten Offering.
(c) If any of the Registrable Securities are to be sold in an Underwritten Offering, the investment banker in interest that will administer the offering will be selected by the Holders of a majority of the Registrable Securities included in such offering, subject to the consent of the Company, which will not be unreasonably withheld. No Holder may participate in any Underwritten Offering hereunder unless such Holder (i) agrees to sell its Registrable Securities on the basis provided in any underwriting agreements approved by the Persons entitled hereunder to approve such arrangements and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such arrangements.
(d) If (i) the Initial Registration Statement covering all the applicable Registrable Securities and required to be filed by the Company pursuant to this Agreement is not (A) filed with the Shares and Commission on or before the Filing Date or (B) declared effective by the Commission on or before the applicable Effectiveness Date, (ii) on any day after the Registration Statement has been declared effective by the Commission (A) sales of all the Registrable Securities required to be included on a Registration Statement cannot be made pursuant to the Registration Statement (including, without limitation, because of a failure to keep the Registration Statement effective, to disclose such information as is necessary for sales to be made pursuant to the Registration Statement, or to register sufficient shares of Common Stock) or (B) the Warrant Shares issuable upon full exercise Common Stock is not listed or included for quotation on either the Nasdaq SmallCap Market or the Nasdaq National Market of the Warrant. Thereafter Nasdaq Stock Market ("Nasdaq"), the ------ New York Stock Exchange ("NYSE") or the American Stock Exchange (the "AMEX") or ---- ---- (iii) the Company shall use its reasonable best efforts otherwise fail to cause such file a Registration Statement required by Section 2(a), (each such event specified in (i), (ii) and (iii) above, an "Event"), then, as partial relief for the damages to any Holder by reason of any --- such delay in or reduction of its ability to sell the Registrable Securities (which remedy shall not be exclusive of any other filings equitable remedies), after a 60-day period commencing on the date of the Event, the Company shall pay to be each Holder an amount in cash (a "Registration Delay Payment") equal to the purchase -------------------------- price of Preferred Stock as set forth in Schedule I the Purchase Agreement (the "Aggregate Price") multiplied by .015 times the sum of: (i) the number of months --------------- (rounded upwards to the nearest 30 day increment for partial months) after the end of the Effectiveness Date and prior to the date the Registration Statement is declared effective as soon as possibleby the Commission, and provided, however, that there shall be -------- ------- excluded from such period any delays which are primarily attributable to changes required by the Purchasers in any event prior to 90 days (or, if the SEC elects to review the Registration StatementStatement with respect to information relating to the Purchasers, 180 daysor to the failure of the Purchasers to conduct their review of the Registration Statement pursuant to Section 3(a); (ii) following the filing number of months (rounded upwards to the nearest 30 day increment for partial months) that sales cannot be made pursuant to the Registration Statement after the Registration Statement has been declared effective (including, without limitation, when sales cannot be made by reason of the Company’s 2004 10-K 's failure to properly supplement or amend the Prospectus in accordance with the terms of this Agreement, or otherwise, but excluding when such sales cannot be made solely by reason of any act or omission primarily attributable to the Purchasers); and (iii) the “Effectiveness Deadline”). Without limiting number of months (rounded upwards to the foregoingnearest 30 day increment for partial months) that the Common Stock is not listed or included for quotation on the Nasdaq, NYSE or AMEX or that trading thereon is halted after the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible dateRegistration Statement has been declared effective. The Company shall provide pay any Required Registration Delay Payments to each Holder in cash on the last Business Day of each month during which an Event has occurred and is continuing. In the event the Company fails to make a Registration Delay Payment in a timely manner, such Registration Delay Payment shall bear interest at the rate of 1.5% per month (rounded upwards to the nearest 30 day increment for partial months) until paid in full. No Standstill Period (as defined in paragraph (e)) shall be included in the period an Event is deemed to be continuing pursuant to this Section 2(d). Notwithstand anything in this Agreement to the contrary, in lieu of cash payment described above during the sixty (60) day period described below, if the Event is the Company's failure to file the Initial Registration Statement on or before the Filing Date, the Company shall issue to the Holders Warrants to purchase additional 55,000 shares of Common Stock for each 30-day period that passes following the Filing Date up to a maximum of two such 30-day periods, if the Event is the failure to have the Registration Statement declared effective on or before the Effectiveness Date, the Company shall issue to the Holders Warrants to purchase an additonal 55,000 shares of Common Stock for each 30-day period that passes following the Effectiveness Date up to a maximum of two such 30-day periods. The Warrant issued to each Holder shall be to purchase a portion of the aggregate number of shares of Common Stock on a pro rata basis equal to its percentage ownership of the then outstanding number of shares of Preferred Stock. In the case of an occurrence on an Event specified in (ii)(B) above, the Holders shall be obligated to elect to receive the Registration Delay Payments set forth in this paragraph or, alternatively, the redemption or dividend adjustment set forth in Section 7(f) of the Certificate of Designation and the adjustment set forth in Section 6(f) in the Warrant. Such election shall be made by the holders of a majority of the outstanding Preferred Stock (excluding Preferred Stock held by Affiliates of the Company, other than persons who are Affilates solely as a result of the Preferred Stock and Warrants held by such person) and the Company shall not be obligated to effect such payment or adjustment until such election is made. The Company shall have no liability to any Holder for actions taken in accordance with such election by the holders of a majority of the Preferred Stock.
(e) Notwithstanding anything to the contrary herein, the Company may delay preparing, filing any Registration Statement, and may withhold efforts to cause the Registration Statement to become effective, and may delay the filing of any supplement or amendment if the Company determines in good faith that such supplement or amendment might, in the reasonable opportunity judgment of the Company (i) interfere with or affect the negotiation or completion of a transaction that is being contemplated by the Company (whether or not a final decision has been made to review undertake such transaction) or (ii) involve initial or continuing disclosure obligations that are not in the portions best interests of the Company's stockholders at such time; provided however, that (x) the Company will give notice (a "Standstill Notice") of any such delay no less than five (5) Business Days prior -------- to such delay (other than an Event specified in Section 2(d)(ii)(B)), (y) such delay shall not extend for a period of more than fifteen (15) Trading Days without the written consent of the Holder and (z) the Company may utilize such delay no more than an aggregate of thirty (30) Trading Days in each calendar year (each a "Standstill Period"). Each Holder agrees, upon receipt of a ------------------ exhibit 10.3, page 6 Standstill Notice, forthwith to cease making offers and sales of the Shares pursuant to any Registration Statement that is effective or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and deliveries of the prospectus used in connection with such Registration Statement as may be necessary contained therein and to comply with the provisions of the Act with respect return to the disposition of all securities covered by such Registration Statement Company, for modification and notify exchange, the Holders of the filing and effectiveness copies of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned not theretofore delivered by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as forthwith prepare and deliver to such Holder after such delay a condition thereto to qualify to do business or to file a general consent to service reasonable number of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening copies of any event (but supplement to or amendment of such prospectus that may be necessary so that such prospectus does not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes include an untrue statement of a material fact or omits omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and use its reasonable best efforts . No Registration Delay Payments shall be payable nor any Warrants issued pursuant to promptly update and/or correct such prospectus.
(viSection 2(d) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal securities exchange and/or market on which the Common Stock is then listed and prepare and file any required filings with such principal market or exchange.
(b) In the event the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities under the Registration Statement is suspended for more than (i) 45 days in any 90-day period or (ii) 90 days in any calendar year, including without limitation by reason of any suspension or stop order hereof with respect to the Registration Statement or the fact that an event has occurred as a result of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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, then the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its SubsidiariesStandstill Period.
(f) The Company may suspend represents and warrants that it meets the registrant eligibility and transaction requirements for the use of any prospectus used in connection with Form S-3 for the Registration Statement only in registration of the event, and for such period sale of time as, (i) such a suspension is required Registrable Securities by the rules Purchasers and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of any other Holders and the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are reports required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi), and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that with the Commission in a timely manner so as to maintain such eligibility for the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraphForm S-3.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (Level 8 Systems Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such reasonable best efforts by the Company shall include, without limitation, the following:
(a) The Company shall, as expeditiously as possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):Closing Date:
(i) But in any event within 30 by the date which is 90 days of after the filing of the Company’s 2004 10-KClosing Date, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into an S-3 promptly after as soon as Form S-3 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (the “Registration Statement”), which Registration Statement, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such number of additional shares of Common Stock as may become issuable pursuant to the anti-dilution provisions of the Notes or Warrants. The number of shares of Common Stock initially included in such Registration Statement shall be no less than the product of 1.2 times the sum of (A) the Shares and (B) the Warrant Shares number of shares of Common Stock that are issuable upon full exercise of the Warrants as of the date of this Agreement at the then applicable Exercise Price (as defined in the Warrant) plus the number of shares of Common Stock that would be issuable pursuant to the conversion of the Notes (assuming that the Notes were to become convertible on the date before which the Registration Statement is filed). Thereafter the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possible, and in any event prior to 90 days no later than the following date, as appropriate (or, the “Required Effective Date”): (A) if the SEC elects to notifies the Company that the SEC will not review the Registration Statement, 180 daysthe Required Effective Date shall be five (5) following days after the filing of SEC provides such notification, or (B) if the Company’s 2004 10-K SEC notifies the Company that it will review the Registration Statement, then the Required Effective Date shall be sixty (60) days after the “Effectiveness Deadline”)Company receives the first written comments on the Registration Statement from the SEC. Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish to each Holder that has Registrable Securities included in the Registration Statement such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register and qualify the securities covered by such Registration Statement under the securities or “blue skyBlue Sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify promptly each Holder immediately that has Registrable Securities included in the Registration Statement of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holderevent) of which the Company has knowledge as a result of which the prospectus (including any supplements thereto or thereof) included in such Registration Statement, as then in effect, includes an untrue statement of 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 existingexisting (each an “Event”), and use its reasonable best efforts to promptly update and/or correct such prospectus. Each Holder will hold in confidence and will not make any disclosure of any such Event and any related information disclosed by the Company.
(vi) Notify each Holder immediately of the issuance by the Commission SEC or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to the Holders to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing and will not request acceleration of the Registration Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed and prepare and file any required filings with such principal the Nasdaq National Market System or any other exchange or market where the shares of Common Stock are traded.
(viii) Take all steps reasonably necessary to enable Holders to avail themselves of the prospectus delivery mechanism set forth in Rule 153 (or exchangesuccessor thereto) under the Act.
(b) In Notwithstanding the event obligations under Section 2(a)(v) or any provision of this Agreement, if (i) in the good faith judgment of the Company, following consultation with legal counsel, it would be detrimental to the Company and its stockholders for resales of Registrable Securities to be made pursuant to the Registration Statement has become effective and, afterwards, any Holder’s ability due to sell Registrable Securities under the existence of a material development or potential material development involving the Company that the Company would be obligated to disclose in the Registration Statement is suspended for more than (i) 45 days in any 90-day period Statement, which disclosure would be premature or otherwise inadvisable at such time or would have a material adverse effect upon the Company and its stockholders, or (ii) 90 days in any calendar yearthe good faith judgment of the Company, including without limitation by reason it would adversely affect or require premature disclosure of the filing of a Company-initiated registration of any suspension or stop order with respect to the Registration Statement or the fact that an event has occurred as a result class of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 existingits equity securities, then the Company shall take such action as may be necessary will have the right to amend or supplement such suspend the use of the Registration Statement or prospectus such for a period of not more than 30 consecutive calendar days, but only if the Company reasonably concludes, after consultation with outside legal counsel, that such the failure to suspend the use of the Registration Statement or prospectus, as so amended, shall not contain an untrue statement such would create a risk of a material fact liability or omit to state a material fact required to be stated therein violation under applicable securities laws or necessary to make the statements not misleadingregulations.
(c) If Set forth below in this Section 2(c) are (I) events that may arise that the Holder(s) intend to distribute Purchaser considers will interfere with the Registrable Securities by means full enjoyment of an underwritingtheir rights under this Agreement, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration StatementPurchase Agreement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of Notes (the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or (ii) it is determined in good faith by the Board of Directors of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use reasonable best efforts to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi“Interfering Events”), and upon notice (II) certain remedies applicable in each of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraphthese events.
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (Liquidmetal Technologies Inc)
Registration Requirements. The Company shall use its reasonable best efforts to effect the registration of the resale of the Registrable Securities (including, including without limitation, limitation the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky "Blue Sky" or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the HolderHolder and in all U.S. jurisdictions. Such reasonable best efforts by the Company shall include, without limitation, include the following:
(a) The Company shall, as expeditiously as reasonably possible after the filing of the Report on Form 10-K for the year ended December 31, 2004, including the filing of a Form 10-K/A containing a management report and an auditor’s report on the effectiveness of the Company’s internal control over financial reporting within the time permitted under Exchange Act Release No. 50754 (November 30, 2004) (collectively, the “Company’s 2004 10-K”):Closing Date:
(i) But in any event within 30 240 days of the filing of the Company’s 2004 10-Kthereafter ("Filing Deadline"), prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act) covering the Registrable Securities (such registration statement, including any amendments or supplements thereto and prospectuses contained therein, is referred to herein as the "Registration Statement"), which Registration Statement, to the extent allowable under the Securities Act provided and the rules promulgated thereunder (including Rule 416), shall state that such other form Registration Statement also covers such number of additional shares of Common Stock as may become issuable to prevent dilution resulting from stock splits, stock dividends or similar events. The Registration Statement shall be converted into an S-3 promptly after Form S-3 becomes available to the Company) covering resales by identify the Holders as selling stockholders (securityholders and not as underwriters) of the Registrable Securities (the “Registration Statement”). The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (A) 2.0 times the sum of the number of Common Shares and that are as of the date of this Agreement issuable upon conversion of the Debentures plus (B) the number of Warrant Shares issuable upon full exercise of the WarrantWarrants in each case without regard to any limitation on the Purchaser's ability to convert the Debentures or Warrants. Thereafter Thereafter, the Company shall use its reasonable best efforts to cause such Registration Statement and other filings to be declared effective as soon as possiblepracticable, and in any event prior to 90 the earlier of (i) 300 days (or, if the SEC elects to review the Registration Statement, 180 days) following the filing of the Company’s 2004 10-K Closing Date or (ii) five days after SEC clearance to request acceleration (the “"Effectiveness Deadline”"). Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. The Company shall provide the Holders and their legal counsel reasonable opportunity to review the portions of any such Registration Statement or amendment or supplement thereto containing disclosure regarding the Holders prior to filing.
(ii) Prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement in accordance with the intended methods of disposition by the seller thereof as set forth in the Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements.
(iii) Furnish After the registration, furnish to each Holder such numbers of copies of a current prospectus conforming with the requirements of the Act, copies of the Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Holder may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Holder.
(iv) Register Use its best efforts to register and qualify the securities covered by such Registration Statement under the such other securities or “blue sky” "Blue Sky" laws of all domestic U.S. jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any event (but not the substance or details of any such events unless specifically requested by a Holder) as a result of which the prospectus (including any supplements thereto or thereofthereof and any information incorporated or deemed to be incorporated by reference therein) included in such Registration Statement, as then in effect, includes an untrue statement of 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, and and, pursuant to Section 2(f), use its reasonable best efforts to promptly update and/or correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(vii) Permit a single firm of counsel, designated as Holders' counsel to by the Holders of a majority of the Registrable Securities included in the Registration Statement, to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than two (2) full Trading Days) prior to each filing filing, and will shall not request acceleration file any document containing information regarding one or more Holders if such counsel reasonably objects to the form or substance of the Registration Statement without prior notice to such counselinformation concerning such Holders.
(viii) List Use its best efforts to list the Registrable Securities covered by such Registration Statement on the principal with all securities exchange exchange(s) and/or market markets on which the Common Stock is then listed and prepare and file any required filings with such principal the National Association of Securities Dealers, Inc. or any exchange or market where the Common Stock is then traded.
(ix) If applicable, take all steps necessary to enable Holders to avail themselves of the prospectus delivery mechanism set forth in Rule 153 (or exchangesuccessor thereto) under the Act.
(x) File and cause to become effective additional Registration Statements if the number of Registrable Securities at any time exceeds 85% of the number of shares of Common Stock then registered in the existing Registration Statements hereunder.
(b) In Set forth below in this Section 2(b) are (I) events that may arise that the event Purchaser considers will interfere with the Registration Statement has become effective and, afterwards, any Holder’s ability to sell Registrable Securities full enjoyment of its rights under the Registration Statement is suspended for more than Debentures, the Purchase Agreement and this Agreement (the "Interfering Events"), and (II) certain remedies applicable in each of these events. Paragraphs (i) 45 days in any 90-day period or through (iiiv) 90 days in any calendar yearof this Section 2(b) describe the Interfering Events, including without limitation by reason of any suspension or stop order with respect provide a remedy to the Registration Statement Holders if an Interfering Event occurs and provide that the Holders may require that the Company redeem outstanding Debentures, Warrants, or Registrable Securities at a specified price if certain Interfering Events are not timely cured. Paragraph (v) provides, inter alia, that each Holder shall have the fact that an event has occurred option as to whether it would like to receive any payment required as a result remedy in the case of which the prospectus (including any supplements thereto) included in such Registration Statement then in effect includes an untrue statement of 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 certain of the circumstances then existingInterfering Events in cash or shares of Common Stock. Paragraph (vi) provides, then inter alia, that if payments required as the remedy in the case of certain of the Interfering Events are not paid when due, the Company shall take such action as may be necessary to amend or supplement such Registration Statement or prospectus such that such Registration Statement or prospectus, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements not misleading.
(c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder(s) shall so advise the Company. Any such underwriting may only be administered by nationally or regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements (including an underwriting agreement containing such representations and warranties by the Company and such other terms and provisions, as are customarily contained in underwriting agreements for comparable offerings and are reasonably satisfactory to the Company) and take all such other actions as the Holder or the underwriters participating in such offering and sale may reasonably request in order to expedite or facilitate such offering and sale other than such actions which are disruptive to the Company or require significant management availability.
(e) The Company shall make available for inspection by the Holders, representative(s) of all the Holders together, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder or underwriter, all financial and other records customary for purposes of the Holders’ due diligence examination of the Company and review of any Registration Statement, all documents filed with the SEC subsequent to the Closing, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement, provided that such parties agree to keep such information confidential. Notwithstanding the foregoing, the foregoing right shall not extend to any Holder (i) who is not a financial investor or entity or (ii) who, itself or through any affiliate, has any strategic business interest that would reasonably be expected to be in conflict with any business of the Company or its Subsidiaries.
(f) The Company may suspend the use of any prospectus used in connection with the Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission Holders to redeem outstanding Debentures, Warrants, or Registrable Securities at a specified price. Paragraph (iiviii) it is determined in good faith by the Board of Directors of the Company provides, inter alia, that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (ii) the Company provides the Holders with written notice of such suspension, which notice need not specify have the nature of the event giving rise right to such suspensionspecific performance. The Company will use reasonable best efforts preceding paragraphs in this Section 2(b) are meant to cause such suspension to terminate at the earliest possible date.
(g) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, serve only as may be necessary to keep such Registration Statement effective at all times during the Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant an introduction to this Section 3(h)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(h) Each Holder agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 5.2(a)(v) or 5.2(a)(vi2(b), are for convenience only, and upon notice of any suspension under Section 5.2(f), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 5.2, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed not to be incorporated by reference considered in such Prospectus applying, construing or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of interpreting this paragraphSection 2(b).
(i) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (Allied Research Corp)
