Registration Requirements. Within the two (2) month period after the Closing Date and using continued best efforts thereafter, the Company shall use its best efforts to effect as soon as practicable the registration 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 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 best efforts by the Company shall include, without limitation, the following: The Company shall, as expeditiously as possible: (i) Prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form 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 SB-2 as soon as Form SB-2 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (“Registration Statement”), The Company shall use its best efforts to cause such Registration Statement and other filings to be declared effective as soon as 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. (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) 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 Registrable Securities 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 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” laws of all domestic jurisdictions; 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 that has Registrable Securities included in the Registration Statement of the happening of any event (but not the substance or details of any such event) 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 existing (each an “Event”), and use its 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 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 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) List the Registrable Securities covered by such Registration Statement with all securities exchange(s) and/or 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 Stock is 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 Holder reasonably believes it might be deemed to be an underwriter or a 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) Notwithstanding the 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 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) in the good faith judgment of the Company, 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 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 the failure to suspend the use of the Registration Statement as such would create a material liability or violation under applicable securities laws or regulations. (c) If at any time subsequent to the date such Registration Statement is declared effective, the number of shares of Common Stock registered for resale pursuant to the Registration Agreement is not equal to at least 100% of the Registrable Securities, the Company shall amend the Registration Statement to add such additional securities. In the event that the Company is unable under the securities laws to add such additional securities to the then 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 as of which the need to file the Registration Statement arose. (d) 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 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 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 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 registration shall be included in the following order: (i) first, the Primary Shares; 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 Stock by the Company that is in satisfaction of a demand registration pursuant to Section 2(e), the order for inclusion of Primary Shares and Registrable Securities shall be as set forth in that 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 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 pursuant to 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 Stock are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 60 calendar days; (ii) The 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, non-public information concerning an acquisition, merger, recapitalization, consolidation, reorganization or other material transaction by or of the Company or concerning 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) At such time as the Company shall have qualified for the use of Form S-3 promulgated under the Securities Act or any successor form thereto, the Holders shall have the right to request in writing registrations on Form S-3 or such successor form of Registrable Shares held by the Holders in the manner described in Section 2(a), which request or requests shall (i) specify the number of Registrable Shares held by the requesting Holders intended to be sold or disposed of, (ii) state the intended method of disposition of such Registrable Shares held by the 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 a registration statement initiated pursuant to Section 2(e) but shall otherwise be treated as a registration statement initiated pursuant to, 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 similar state securities laws in any jurisdiction in which the Company would be required to qualify to do business or execute a general consent to service of process to effect such registration and filing.

Appears in 1 contract

Samples: Registration Rights Agreement (Migo Software, Inc.)

Registration Requirements. ~~Within the two (2) month period after the Closing Date and using continued best efforts thereafter, the~~ The Company shall use its ~~best efforts~~ Best Efforts (as defined in the Articles of Amendment) to effect ~~as soon as practicable~~ the registration 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 sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the ~~Holder~~Holder on an Approved Market. Such ~~best efforts~~ Best Efforts by the Company shall ~~include, without limitation,~~ include the following: : (a) The Company shall, as expeditiously as ~~possible~~reasonably possible after the Closing Date: (i) Prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form ~~SB-2~~ 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 SB-2 as soon as Form SB-2 becomes available to the Company~~Act) 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 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 Series C Preferred Stock or exercise of the Warrants (A) to prevent dilution resulting from stock splits, stock dividends or similar transactions or (B) by reason of changes in the Conversion Price (as defined in Section 3(b) of the Articles of Amendment). Thereafter, ~~The~~ the Company shall use its ~~best efforts~~ Best Efforts to cause such Registration Statement and other filings to be declared effective as soon as ~~practicable. Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests~~possible, and in any event on or prior to the Registration Deadline. The number of shares of Common Stock initially included in such Registration Statement shall ~~request acceleration~~ be no less than the total outstanding Secondary Common Shares, plus (x) the number of ~~effectiveness~~ shares of Common Stock for which the Series C Preferred Stock are at any time convertible in full, assuming a Conversion Price of $4.00 and (y) 105% of the ~~earliest possible date~~number of Warrant Shares that are then issuable upon the exercise of the Warrants, in each case, without regard to any limitation on the Investor's ability to convert the Series C Preferred Stock or exercise the Warrants. The Company acknowledges that such number of shares of Common Stock to be initially included in the Registration Statement includes a good faith estimate of the maximum number of shares issuable upon conversion of the Series C Preferred Stock and exercise of the Warrants. (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 and to comply with the provisions of the ~~Securities~~ 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 the Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements. In the event the number of shares available under a Registration Statement filed pursuant to this Agreement is insufficient to cover all of the Registrable Securities issued or issuable upon conversion of the Series C Preferred Stock and exercise of the Warrants, the Company shall amend the Registration Statement, or file a new Registration Statement (on the short form available therefore, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within twenty (20) Trading Days after the necessity therefor arises (based on the market price of the Common Stock and other relevant factors on which the Company reasonably elects to rely). The Company shall use its Best Efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. The provisions of Section 2(b)(i) below shall be applicable with respect to such obligation. (iii) 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, 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 ~~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 ~~request~~ require in order to facilitate the disposition of Registrable Securities owned by such ~~Holder~~Holder 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 each Investor 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 any Registration Statement or any amendment thereto to be declared effective by the SEC as soon as 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 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” " 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 (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; ~~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, 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 Best Efforts to obtain such permission or approval. (v) Notify ~~promptly~~ each Holder ~~that has Registrable Securities included in the Registration Statement~~ immediately of the happening of any event ~~(but not the substance or details of any such event) 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 ~~existing (each an “Event”)~~existing, and use its ~~best efforts~~ Best Efforts to promptly update and/or correct such ~~prospectus. Each~~ prospectus to correct such untrue statement or omission, and deliver such number of copies of such supplement or amendment to each Holder ~~will hold in confidence and will not make any disclosure of any~~ as such ~~Event and any related information disclosed by the Company except to Holder’s financial and legal advisors~~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 best efforts~~ take all reasonable actions necessary 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 by 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 prior to each 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. The sections of the Registration Statement covering information with respect to the Investors, the Investor's beneficial ownership of securities of the Company or the Investors' intended method of disposition of Registrable Securities shall, subject to applicable requirements of the Securities Act and SEC rules thereunder, conform to the information provided to the Company by each of the Investors. (viii) List the Registrable Securities covered by such Registration Statement with all securities exchange(s) and/or 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”)~~National Association of Securities Dealers, ~~if any,~~ Inc. or any ~~other~~ exchange or market where the shares of Common Stock is are traded. (~~viii~~ix) ~~Take~~ If applicable, 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. (ixx) ~~Permit~~ The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company unless (a) disclosure of such information is necessary to comply with federal or state securities laws, (b) the disclosure of such information is necessary to avoid or correct a ~~Holder~~misstatement or omission in any Registration Statement, if (c) the release of such ~~Holder reasonably believes~~ 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 ~~might be deemed~~ shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court of governmental body of competent jurisdiction or through other means, give prompt notice to ~~be an underwriter or a controlling person of~~ such Investor prior to making such disclosure, and allow the ~~Company~~Investor, at its expense, 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~~undertake appropriate action to prevent disclosure of, or ~~of any~~ obtain a protective order ~~suspending or preventing the use of any related prospectus or suspending the qualification of any common stock included in~~ for, such ~~registration statement for sale in any jurisdiction, the Company shall use its reasonable efforts promptly to obtain the withdrawal of such order~~information. (xi) ~~Furnish to~~ The Company shall provide a 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 and the managing underwriter or underwriters, if ~~such securities are being sold through underwriters~~any, at to facilitate the ~~request~~ timely preparation and delivery of ~~such underwriters, on the date that such Registrable Securities are delivered~~ certificates (not bearing any restrictive legends with respect to ~~the underwriters for sale in connection with a registration pursuant to this Agreement, (i~~transferability) ~~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) Notwithstanding the 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~~ offered pursuant to the Registration Statement ~~due~~ and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request, and, within three (3) Trading 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 ~~existence of a material development or potential material development involving~~ transfer agent for the ~~Company that~~ Registrable Securities (with copies to the ~~Company would be obligated to disclose~~ Investors whose Registrable Securities are included in such Registration Statement) an instruction in the ~~Registration Statement, which disclosure would be premature or otherwise inadvisable at~~ form attached hereto as EXHIBIT 1 and an opinion of such ~~time or would have a material adverse effect upon the Company and its stockholders, or (ii)~~ counsel in the good faith judgment of the Company, 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 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 the failure to suspend the use of the Registration Statement form attached hereto as ~~such would create a material liability or violation under applicable securities laws or regulations~~EXHIBIT 2. (cxiii) ~~If at any time subsequent to~~ At the ~~date such Registration Statement is declared effective,~~ reasonable request of the ~~number~~ holders of ~~shares of Common Stock registered for resale pursuant to the Registration Agreement is not equal to at least 100%~~ a majority-in-interest of the Registrable Securities, the Company shall ~~amend~~ 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 the Registration Statement as may be necessary in order to ~~add~~ change the plan of distribution set forth in such ~~additional securities. In the event that the Company is unable under the securities laws to add such additional securities to the then 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 as of which the need to file the Registration Statement arose. (dxiv) ~~If at any time during~~ From and after the ~~term~~ date of this Agreement, the ~~registration statement described~~ 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 Section 2(a) ~~is not effective with respect to some~~ hereof or ~~all~~ any amendment or supplement thereto under Section 3(b) hereof without the consent of the holders of a majority-in-interest of the Registrable Securities. (xv) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to the Registration Statement. (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 the Articles of Amendment, the Purchase Agreement and this Agreement (the "Interfering Events"), and (ii) certain remedies applicable in each ~~Holder shall have~~ of these events. Paragraphs (i) through (iv) of this Section 2(b) describe the ~~following “piggyback” registration rights~~Interfering Events, ~~which rights shall be pari passu~~ provide a remedy to ~~“piggyback” registration rights or similar rights provided under any other registration rights agreements binding on~~ the ~~Company. If~~ Investors if an Interfering Event occurs and provide that the Investors may require that the Company redeem outstanding shares of Series C Preferred Stock at ~~any time following~~ a specified price if certain Interfering Events are not timely cured. Paragraph (v) provides, INTER ALIA, that if cash payments required as the ~~Closing Date proposes for any reason to register Common Stock under~~ remedy in 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~~ case of certain of 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)Interfering Events are not paid when due, the Company ~~shall use its best efforts~~ may be required by the Investors 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~~redeem outstanding shares of Series C Preferred Stock at a specified price. Paragraph (vi) provides, ~~however~~INTER ALIA, that the ~~Company shall~~ Investors have the right to ~~delay such a registration under customary circumstances for a period not~~ specific performance. The preceding paragraphs 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~~ this Section 2(b) are meant to be included in such registration would interfere materially with the successful marketing (including 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 registration shall be included in the following order: (i) first, the Primary Shares; and (ii) second, the Registrable Securities requested to be included in such registration pursuant serve only as an introduction 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 Stock by the Company that is in satisfaction of a demand registration pursuant to Section 2(e2(b), ~~the order~~ are for ~~inclusion of Primary Shares~~ convenience only, and ~~Registrable Securities shall~~ are not to be ~~as set forth~~ considered in ~~that 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~~applying, ~~the registration statement described in Section 2(a) is not effective with respect to some~~ construing 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 interpreting this Section 2(e) except in accordance with the following provisions: (i) The Company shall 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 pursuant to this Section 2(e2(b); (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 Stock are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 60 calendar days; (ii) The 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, non-public information concerning an acquisition, merger, recapitalization, consolidation, reorganization or other material transaction by or of the Company or concerning 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) At such time as the Company shall have qualified for the use of Form S-3 promulgated under the Securities Act or any successor form thereto, the Holders shall have the right to request in writing registrations on Form S-3 or such successor form of Registrable Shares held by the Holders in the manner described in Section 2(a), which request or requests shall (i) specify the number of Registrable Shares held by the requesting Holders intended to be sold or disposed of, (ii) state the intended method of disposition of such Registrable Shares held by the 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 a registration statement initiated pursuant to Section 2(e) but shall otherwise be treated as a registration statement initiated pursuant to, 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 similar state securities laws in any jurisdiction in which the Company would be required to qualify to do business or execute a general consent to service of process to effect such registration and filing.

Appears in 1 contract

Samples: Registration Rights Agreement (Able Telcom Holding Corp)

Appears in 1 contract

Samples: Common Stock Underwriting Agreement (Onyx Software Corp/Wa)

Appears in 1 contract

Samples: Registration Rights Agreement (Telular Corp)

Registration Requirements. ~~Within the two (2) month period after the Closing Date and using continued best efforts thereafter, the Company~~ Cityscape shall use its diligent best efforts to effect ~~as soon as practicable~~ the registration 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 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 best efforts by ~~the Company~~ Cityscape shall ~~include, without limitation,~~ include the following~~: The Company~~ : (a) Cityscape shall, as expeditiously as ~~possible~~reasonably practicable after the Closing Date: (i) Prepare and file ~~a registration statement~~ within 30 days of the Closing Date with the Commission pursuant to Rule 415 under the Securities Act a registration statement on Form ~~SB-2~~ S-3 under the Securities Act (or in the event that ~~the Company~~ Cityscape is ineligible to use such form, such other form as ~~the Company~~ Cityscape is eligible to use under the Securities ~~Act provided that such other form shall be converted into an SB-2 as soon as Form SB-2 becomes available to the Company~~Act) covering ~~resales by the Holders as selling stockholders (not underwriters) of~~ the Registrable Securities (“"Registration Statement”"). Thereafter, ~~The Company~~ Cityscape shall use its best efforts to cause such Registration Statement and other filings to be declared effective ~~as soon as practicable~~prior to 120 days following the Closing Date. ~~Without limiting the foregoing, the Company will promptly respond~~ Cityscape shall provide Holders reasonable opportunity to ~~all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date~~review any such Registration Statement or amendment or supplement thereto prior to filing. (ii) Prepare and file with the ~~SEC~~ Commission such amendments and ~~supplements~~ post-effective amendments to ~~such Registration Statement and the prospectus used in connection with such~~ a Registration Statement as may be necessary to keep such Registration Statement effective for so long as there are any Registrable Securities; cause the related prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act applicable to it with respect to the disposition of all ~~securities~~ Registrable Securities covered by such Registration Statement ~~and notify~~ for so long as there are any Registrable Securities in accordance with the ~~Holders~~ intended methods of disposition by the ~~filing and effectiveness of~~ sellers thereof set forth in such Registration Statement ~~and any amendments~~ or ~~supplements~~supplement to such prospectus. (iii) 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, 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 ~~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 ~~request~~ 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”~~ sky" laws of ~~all domestic jurisdictions; provided that the Company~~ such jurisdictions as 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~~ reasonably requested by each Holder ~~that has~~ and keep each such registration or qualification effective, including through new filings or amendments or renewals, for so long as there are any Registrable Securities ~~included in~~ and do any and all other acts or things necessary or advisable to enable the Registration Statement of the happening of any event (but not the substance or details of any such event) of which the Company has knowledge as a result of which the prospectus (including any supplements thereto or thereof) included disposition in such ~~Registration Statement, as then in effect, includes an untrue statement~~ jurisdictions 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 (each an “Event”), and use its 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 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 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) List the Registrable Securities covered by ~~such Registration Statement with all securities exchange(s) and/or 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 Stock is 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 Holder reasonably believes it might be deemed to be an underwriter or a 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) Notwithstanding the 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 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) in the good faith judgment of the Company, 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 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 the failure to suspend the use of the Registration Statement as such would create a material liability or violation under applicable securities laws or regulations. (c) If at any time subsequent to the date such Registration Statement is declared effective, the number of shares of Common Stock registered for resale pursuant to the Registration Agreement is not equal to at least 100% of the Registrable Securities, the Company shall amend the Registration Statement to add such additional securities. In the event that the Company is unable under the securities laws to add such additional securities to the then 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 as of which the need to file the Registration Statement arose. (d) 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 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 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 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 registration shall be included in the following order: (i) first, the Primary Shares; 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 Stock by the Company that is in satisfaction of a demand registration pursuant to Section 2(e), the order for inclusion of Primary Shares and Registrable Securities shall be as set forth in that 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 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 pursuant to 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 Stock are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 60 calendar days; (ii) The 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, non-public information concerning an acquisition, merger, recapitalization, consolidation, reorganization or other material transaction by or of the Company or concerning 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) At such time as the Company shall have qualified for the use of Form S-3 promulgated under the Securities Act or any successor form thereto, the Holders shall have the right to request in writing registrations on Form S-3 or such successor form of Registrable Shares held by the Holders in the manner described in Section 2(a), which request or requests shall (i) specify the number of Registrable Shares held by the requesting Holders intended to be sold or disposed of, (ii) state the intended method of disposition of such Registrable Shares held by the 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 a registration statement initiated pursuant to Section 2(e) but shall otherwise be treated as a registration statement initiated pursuant to, 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 similar state securities laws in any jurisdiction in which the Company would be required to qualify to do business or execute a general consent to service of process to effect such registration and filing.Registration

Appears in 1 contract

Samples: Registration Rights Agreement (Cityscape Financial Corp)

Appears in 1 contract

Samples: Registration Rights Agreement (Secure Computing Corp)

Registration Requirements. ~~Within~~ SCHI shall not be required to issue any shares of Common Stock under the ~~two (2) month period after~~ Warrant if the ~~Closing Date and using continued best efforts thereafter~~issuance of such shares would constitute a violation by SCHI of any provision of any law or regulation of any governmental authority, ~~the Company shall use its best efforts to effect as soon as practicable the registration of the Registrable Securities (including,~~ including without limitation, the ~~execution~~ registration or qualification requirement of ~~an undertaking to file post-effective amendments, appropriate qualification under~~ applicable ~~blue sky or other~~ federal and state securities laws ~~and appropriate compliance with applicable regulations issued under the Securities Act) as would permit~~ or ~~facilitate the sale or distribution~~ regulations. If at any time SCHI shall determine, based upon a written opinion of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Holder. Such best efforts by the Company shall include, without limitation, the following: The Company shall, as expeditiously as possible: (i) Prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form 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 SB-2 as soon as Form SB-2 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (“Registration Statement”), The Company shall use its best efforts to cause such Registration Statement and other filings to be declared effective as soon as 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. (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) 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 Registrable Securities 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 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” laws of all domestic jurisdictions; 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 that has Registrable Securities included in the Registration Statement of the happening of any event (but not the substance or details of any such event) 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 existing (each an “Event”), and use its 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 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 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) List the Registrable Securities covered by such Registration Statement with all securities exchange(s) and/or 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 Stock is 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 Holder reasonably believes it might be deemed to be an underwriter or a 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) Notwithstanding the 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 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) in the good faith judgment of the Company, 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 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 the ~~failure~~ registration or qualification of any shares subject to ~~suspend~~ the ~~use~~ Warrant under any applicable state or federal law is necessary as a condition of or in connection with the issuance of shares, the Warrant may not be exercised in whole or in part unless such registration or qualification shall have been effected or obtained free of any conditions not reasonably acceptable to SCHI, and any delay caused thereby shall in no way affect the date of termination of the ~~Registration Statement~~ Warrant. Specifically in connection with the Securities Act of 1933 (as ~~such would create a material liability~~ now in effect or ~~violation under~~ as hereafter amended) (the "Securities Act") and applicable state securities laws ~~or regulations.~~ (~~c) If at any time subsequent~~ "State Acts"), unless a registration statement under the Securities Act and State Acts is in effect with respect to the ~~date such Registration Statement is declared effective, the number of~~ shares of Common Stock ~~registered for resale~~ covered by the Warrant, SCHI shall not be required to issue such shares unless the Board of Directors of SCHI has received evidence reasonable satisfactory to it that the Holder may acquire such shares pursuant to the Registration Agreement is not equal to at least 100% of the Registrable Securities, the Company shall amend the Registration Statement to add such additional securities. In the event that the Company is unable under the securities laws to add such additional securities to the then 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 as of which the need to file the Registration Statement arose. (d) 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 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 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 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 registration shall be included in the following order: (i) first, the Primary Shares; 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 Stock by the Company that is in satisfaction of a demand registration pursuant to Section 2(e), the order for inclusion of Primary Shares and Registrable Securities shall be as set forth in that 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 exemption from 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~~ and State Acts. SCHI shall not be obligated to ~~effect~~ take any ~~registration under this Section 2(e) except~~ affirmative action in ~~accordance~~ order to cause the exercise of the Warrant or the issuance of shares pursuant thereto to comply with any law or regulation of any governmental authority. As to any jurisdiction that expressly imposes the ~~following provisions: (i) The Company~~ requirement that the Warrant shall not be ~~obligated to file~~ exercisable unless 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~~ until the shares of Common Stock covered by the ~~Holders pursuant~~ Warrant are registered or are subject to 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 Stock are to be or were sold has been filed and not withdrawn or has been declared effective within an available exemption from registration, the prior 60 calendar days; (ii) The 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, non-public information concerning an acquisition, merger, recapitalization, consolidation, reorganization or other material transaction by or exercise of the ~~Company or concerning pending or threatened litigation and~~ Warrant (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) At such time as the Company shall have qualified for the use of Form S-3 promulgated under the Securities Act or any successor form thereto, the Holders shall have the right to request in writing registrations on Form S-3 or such successor form of Registrable Shares held by the Holders in the manner described in Section 2(a), which request or requests shall (i) specify the number of Registrable Shares held by the requesting Holders intended to be sold or disposed of, (ii) state the intended method of disposition of such Registrable Shares held by the 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 a registration statement initiated pursuant to Section 2(e) but shall otherwise be treated as a registration statement initiated pursuant to, 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 similar state securities laws in any jurisdiction circumstances in which the ~~Company would~~ laws of such jurisdiction apply) shall be ~~required to qualify to do business or execute a general consent to service~~ deemed conditioned upon the effectiveness of ~~process to effect~~ such registration ~~and filing~~or the availability of such an exemption.

Appears in 1 contract

Samples: Warrant Agreement (Simione Central Holdings Inc)

Registration Requirements. ~~Within the two (2) month period after the Closing Date and using continued best efforts thereafter, the Company~~ CIC shall use its best efforts to effect ~~as soon as practicable~~ the registration 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 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 best efforts by ~~the Company~~ CIC shall ~~include, without limitation,~~ include the following~~: The Company~~ : (a) CIC shall, as expeditiously as ~~possible~~reasonably possible after the Closing Date: (i) Prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form ~~SB-2~~ S-3 under the Securities Act (or in the event that ~~the Company~~ CIC is ineligible to use such form, such other form as ~~the Company~~ CIC is eligible to use under the Securities ~~Act provided that such other form shall be converted into an SB-2 as soon as Form SB-2 becomes available to the Company~~Act) covering ~~resales by the Holders as selling stockholders (not underwriters) of~~ the Registrable Securities (“"Registration Statement”)") by March 31, ~~The Company~~ 1997. Thereafter CIC shall use its best efforts to cause such Registration Statement and other filings to be declared effective ~~as soon as practicable~~prior to 180 days following the Closing Date. ~~Without limiting the foregoing, the Company will promptly respond~~ CIC shall provide Holders reasonable opportunity to ~~all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date~~review any such Registration Statement or amendment or supplement thereto 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) 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, 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 ~~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 ~~request~~ 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~~such jurisdictions as shall be reasonably requested by each Holder; provided that ~~the Company~~ CIC 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 ~~that has Registrable Securities included in the Registration Statement~~ immediately of the happening of any event ~~(but not the substance or details of any such event) 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 ~~existing (each an “Event”)~~existing, and use its 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~~ CIC shall use its 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) ~~List~~ Permit a single firm of counsel, designated as Holders' counsel by 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 prior to each filing, and shall not file any document in a form to which such counsel reasonably objects. (viii) Use its best efforts to list the Registrable Securities covered by such Registration Statement with ~~all~~ any securities exchange(s) and/or 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”)~~National Association of Securities Dealers, ~~if any,~~ Inc. or any ~~other~~ exchange or market where the Common ~~Stock is~~ 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 Holder reasonably believes it might be deemed to be an underwriter or a 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) Notwithstanding the 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, CIC agrees that it ~~would be detrimental to the Company and its stockholders for resales of Registrable Securities to be made pursuant to~~ shall file the 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) in the good faith judgment of the Company, 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 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 the failure to suspend the use of the Registration Statement as such would create a material liability or violation under applicable securities laws or regulations. (c) If at any time subsequent to the date such Registration Statement is declared effective, the number of shares of Common Stock registered for resale pursuant to the Registration Agreement is not equal to at least 100% of the Registrable Securities, the Company shall amend the Registration Statement to add such additional securities. In the event that the Company is unable under the securities laws to add such additional securities to the then effective Registration Statement, the Company shall promptly file, in accordance complying with the ~~procedures set forth herein~~requirements of this Agreement by March 31, ~~an additional Registration Statement with respect to such newly Registrable Securities. The Company~~ 1997 and shall use its best efforts to cause ~~any~~ such ~~additional~~ Registration ~~Statement, when filed,~~ Statement to become effective ~~as soon as practicable~~ within 180 days from the Closing Date. In the event that such Registration Statement has not been declared effective within 180 days from the Closing Date, then CIC shall pay to each Holder a default payment in an amount equal to three percent (3%) of the Liquidation Preference for the Preferred Shares held by such Holder for each 30-day period from and after ~~that date as~~ the 180th day following the Closing Date during any part of which such Registration Statement is not effective. (ii) In the ~~need~~ event that CIC fails, refuses or is unable to ~~file~~ cause the Registrable Securities covered by the Registration Statement ~~arose~~to be listed with the securities exchange(s) and markets on which the Common Stock is then traded and the NASDAQ Small Capitalization Market or the National Market at all times during the period ("Listing Period") from the Conversion Commencement Date (subject to acceleration pursuant to Section 4 of the Designation) until the date which is the last day of the 13th fiscal month following the Closing Date (provided that such date shall be deferred 1.5 days for each day that there is no Effective Registration after the Conversion Commencement Date), then CIC shall pay to each Holder a default payment in an amount equal to three percent (3%) of the Liquidation Preference for the Preferred Shares held by such Holder for each 30-day period during the Listing Period from and after such failure, refusal or inability to so list the Registrable Securities until the Registrable Securities are so listed. (diii) If In the event any Holder's ability to sell Registrable Securities under the Registration Statement is suspended for more that sixty (60) days in the aggregate ("Suspension Grace Period") or if any Holder's ability to sell Registrable Securities under the Registration Statement is suspended at any time during the ~~term~~ 12th or 13th fiscal month following the Closing Date, including without limitation by reason of ~~this Agreement, the registration statement described in Section 2(a) is not effective~~ any suspension or stop order with respect to ~~some~~ the Registration Statement or ~~all~~ 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 ~~Registrable Securities~~circumstances then existing, ~~each Holder~~ then CIC 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 pay to each Holder a default payment in an amount equal to three percent (3%) 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~~ Liquidation Preference for the ~~Company, of such Holder to include in such registration Registrable Securities~~ Preferred Shares held by such Holder for each 30-day period from and after the last day of the Suspension Grace Period or during the 12th or 13th fiscal month following the Closing Date, as the case may be, until such suspension no longer exists. (~~which request shall specify~~ iv) In the event that CIC does not have a sufficient number of ~~Registrable~~ Common Shares ~~proposed~~ available to ~~be included~~ satisfy CIC's obligations to any Holder upon receipt of a Conversion Notice (as defined in the Designation) or is otherwise unable to issue such ~~registration~~ Common Shares (including without limitation by reason of the limit described in Section 11 below) in accordance with the terms of the Designation for any reason after receipt of a Conversion Notice, then CIC shall pay to each Holder a default payment in an amount equal to three percent (3%) of the Liquidation Preference for the Preferred Shares held by such Holder for each 30-day period from and after the Conversion Date (as defined in the Designation) that CIC fails or refuses to issue Common Shares in accordance with the terms thereof. (v) Each default payment provided for in the foregoing clauses (i) through (iv) shall ~~state the intended method of disposition of such Registrable Securities by such Holder), the Company shall use its best efforts~~ be in addition 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~~each other default payment; provided, however, that in no event shall CIC be obligated to pay to any Holder default payments in an aggregate amount greater than three percent (3%) of the ~~Company shall have~~ Liquidation Preference for the ~~right to delay~~ Preferred Shares held by such ~~a registration under customary circumstances~~ Holder 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~~ 30-day period. All default payments required to be ~~included~~ made in ~~such registration would interfere materially~~ connection with the ~~successful marketing (including pricing) of primary shares (the “Primary Shares”) proposed to~~ above provisions shall be ~~registered~~ paid in cash by the ~~Company, then the number~~ tenth (10th) day of ~~Primary Shares and Registrable Securities proposed to be included in such registration~~ each calendar month (which payments shall be ~~included in the following order: (i) first, the Primary Shares; and (ii) second, the Registrable Securities requested to be included in such registration pursuant to this Section 2(d)~~ pro rata on a ~~pari passu~~ per diem basis ~~with the securities~~ for any period of other holders with “piggyback” registration rights; provided, that in the case of any such underwritten offering of Common Stock by the Company that is in satisfaction of a demand registration pursuant to Section 2(e), the order for inclusion of Primary Shares and Registrable Securities shall be as set forth in that 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 less 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(a30 days); provided, however, that in the ~~Company shall not be obligated to effect any registration under this Section 2(e) except~~ event of the circumstance described in ~~accordance with the following provisions:~~ clause (i) ~~The Company~~ above, CIC may pay the default payments due for the first 60 days under such clause in additional Preferred Shares (with each new Preferred Share valued at $25 per share) instead of in cash. In the event that CIC fails or refuses to pay any default payment when due, at any Holder's request and option CIC shall ~~not be obligated to file and cause to become effective~~ purchase all or a portion of the Preferred Shares held by such Holder (~~x) more than two registration statements on Form S-1 or Form SB-2~~ with respect to Registrable Securities initiated by the Holders pursuant to 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 Stock are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 60 calendar days; (ii) The Company may delay the filing or effectiveness of any registration statement for a period of up to 60 calendar days after default payments accruing through the date of such purchase), within five (5) days of such request, at a purchase price equal to the Premium Redemption Price (as defined below), provided that such Holder may revoke such request ~~for registration~~ at any time prior to receipt of such payment of such purchase price. Until such time as the CIC purchases such Preferred Shares at the request of such Holder pursuant to the preceding sentence, the default payment amounts due shall accrue interest at the lower of 38.65% per annum or the highest rate permitted by law, and at any Holder's request and option CIC shall pay such amount in additional Preferred Shares (with each new Preferred Share valued at $25 per share) or by adding and including the amount of such default payment to the Conversion Amount and the Liquidation Preference) instead of in cash. (vi) CIC acknowledges that any failure, refusal or inability by CIC described in the foregoing clauses (i) through (iv) will cause the Holders to suffer damages in an amount that will be difficult to ascertain, including without limitation damages resulting from the loss of liquidity in the Registrable Securities and the additional investment risk in holding the Registrable Securities, whether or not such Holders ultimately achieve the return on investment contemplated in the Designation. Accordingly, the parties agree that it is appropriate to include in this ~~Section 2(e) if~~ Agreement the ~~Company determines~~ foregoing provisions for default payments in order to compensate the Holders for such damages. The parties acknowledge and agree that the default payments set forth above represent the parties' good faith effort to quantify such damages and, as such, agree that the form and amount of such default payments are reasonable and will not constitute a penalty. The default payments provided for above are in addition to and not in lieu or limitation of any other rights the Holders may have at law, in equity or under the terms of the Designation, the Investment Agreement or this Agreement, including without limitation the right to specific performance. Each Holder shall be entitled to specific performance of any and all obligations of CIC in connection with the registration rights of the Holders hereunder. In the event of any of the circumstances described in the foregoing clauses (i) through (iv) above, then the Forced Conversion Date (as defined in the Designation) shall be deferred by 1.5 days for each day that any of the circumstances in clauses (i), (ii), (iii) (without regard to the applicability of the Suspension Grace Period), or (iv) exist. In addition to and without in any way limiting the foregoing, CIC agrees that in the event that (A) it any failure, refusal or inability by CIC described in the clauses (ii) and (iii) of this Section 2(b) is ~~in possession~~ not cured within sixty (60) days of ~~material, non-public information concerning an acquisition, merger, recapitalization, consolidation, reorganization~~ such event or ~~other material transaction by or of the Company or concerning pending or threatened litigation and~~ (B) ~~disclosure~~ the Registration Statement has not been declared effective by the 13th month following the Closing Date, then at the option of each Holder and to the extent such Holder so elects, CIC shall redeem the Preferred Shares and/or Common Shares held by such Holder, in whole or in part, as follows: (i) in the case of Preferred Shares, such shares shall be redeemed at a redemption price per share equal to the Premium Redemption Price (as defined below); and (ii) in the case of Common Shares issued to such Holder pursuant to conversion of Preferred Shares, such shares shall be redeemed at a redemption price per share equal to 1.3865 times the dollar amount which is the product of (x) the number of shares so to be redeemed pursuant to this paragraph, and (y) the closing market price on the principal trading market or exchange of CIC's Common Stock on the date of such ~~information would jeopardize any such transaction or litigation or otherwise materially harm the Company~~redemption; provided, however, that such Holder may revoke such request at any time prior to receipt of such payment of such redemption price. Default payments shall no longer accrue on Preferred Shares after such shares have been redeemed by CIC pursuant to the ~~Company may not exercise such deferral right more than twice in any twelve month-period~~foregoing provision. (fvii) ~~At such~~ In the event any Holder at any time ~~as the Company shall have qualified for the use of Form S-3 promulgated~~ is unable to convert any Preferred Shares under the ~~Securities Act or~~ Designation due to an insufficient number of Common Shares available for any ~~successor form thereto~~reason, then at any time thereafter at the ~~Holders~~ request of any Holder pursuant to a redemption notice, CIC promptly shall ~~have~~ purchase from such Holder, at a purchase price equal to the ~~right to request in writing registrations on Form S-3 or such successor form of Registrable Shares held by the Holders in the manner described in Section 2(a)~~"Premium Redemption Price", ~~which request or requests shall (i) specify~~ the number of ~~Registrable~~ Preferred Shares ~~held by~~ equal to such Holder's pro rata share of the ~~requesting Holders intended to be sold or disposed of~~"Deficiency", as such terms are defined below; provided, however, if within three (ii3) ~~state the intended method of disposition~~ business days of such ~~Registrable~~ redemption notice CIC delivers to such Holder a notice stating that CIC will have a sufficient number of Common Shares ~~held by the Holders and~~ available for conversion of all outstanding Preferred Shares within ten (~~iii~~10) ~~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~~ business days, then CIC shall not count as a registration statement initiated pursuant to Section 2(e) but shall otherwise be treated as a registration statement initiated pursuant to, 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 similar state securities laws in any jurisdiction in which the Company would be required to ~~qualify~~ redeem such Preferred Shares pursuant to do this Section unless CIC shall fail to have a sufficient number of Common Shares available for conversion of all outstanding Preferred Shares after such ten (10) business ~~or execute~~ day period. Notwithstanding the foregoing, in the event any Holder delivers a ~~general consent~~ Conversion Notice and CIC is unable to ~~service~~ convert any Preferred Shares under the Designation due to an insufficient number of ~~process~~ Common Shares available for any reason, CIC promptly shall purchase from such Holder, at a purchase price equal to ~~effect~~ the Premium Redemption Price, the number of Preferred Shares requested to be converted in such ~~registration~~ Conversion Notice which are not so converted. The "Premium Redemption Price" is equal to 1.3865 (i.e., 1 DIVIDED BY .72125) times the following: the sum of $25 times the number of Preferred Shares which cannot be converted plus accrued and ~~filing~~unpaid dividends thereon (with dividends deemed accrued on a per diem basis through the date of such purchase even if such date is not a Dividend Payment Date (as defined in the Designation)) plus any default payments owing to such Holder pursuant to this Agreement. The "Deficiency" shall be equal to the number of Preferred Shares that would not be able to be converted for Common Shares, due to an insufficient number of Common Shares available, if all the outstanding Preferred Shares were submitted for conversion at the Conversion Price set forth in the Designation as of the date such Deficiency is determined.

Appears in 1 contract

Samples: Registration Rights Agreement (Communication Intelligence Corp)

Registration Requirements. ~~Within the two (2) month period after the Closing Date and using continued best efforts thereafter, the~~ The Company shall use its best efforts to effect ~~as soon as practicable~~ the registration 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 ~~sale or distribution~~ resale of all the Registrable Securities in the manner (including manner of sale) ~~and in all states~~ reasonably requested by the ~~Holder~~Holder and in all U.S. jurisdictions. Such best efforts by the Company shall ~~include, without limitation,~~ include the following: : (a) The Company shall, as expeditiously as ~~possible~~reasonably possible after the Exchange Date: (i) ~~Prepare~~ But in any event within 30 days thereafter, prepare and file ~~a registration statement~~ with the Commission ~~pursuant to Rule 415 under the Securities Act~~ on Form ~~SB-2 under the Securities Act~~ S-3 (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) under the Securities Act ~~provided that such other form shall be converted into~~ either (I) a new registration statement covering the resale by the Purchaser of the Registrable Securities and a withdrawal of the Pre-Effective Registration Statement or (II) if permitted under the Securities Act and the rules and regulations thereunder, an ~~SB-2 as soon as Form SB-2 becomes available~~ amendment to the ~~Company)~~ Pre-Effective Registration Statement covering ~~resales~~ the resale by the ~~Holders as selling stockholders (not underwriters)~~ Purchaser of the Registrable Securities (“and deleting coverage of the shares of Common Stock issuable upon conversion of the Debenture and exercise of the Adjustment Warrant). Any such new registration statement or amended Pre-Effective Registration Statement”, including any amendments or supplements thereto and prospectuses contained therein, is referred to herein as the "Registration Statement". The Registration Statement, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), ~~The~~ 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. Subject to compliance with the rules of the SEC, the number of shares of Common Stock initially included in such Registration Statement shall be no less than 200% of the aggregate number of shares of Common Stock issuable upon full conversion of the Preferred Shares (without regard to any beneficial ownership limitations set forth therein), plus 100% of the number of shares of Common Stock estimated in good faith to be issuable upon exercise of the Warrant in full (without regard to any beneficial ownership limitations set forth therein) as of the most recent filing date. Thereafter, the Company shall use its best efforts to cause such Registration Statement ~~and other filings~~ to be declared effective as soon as reasonably practicable, provided that, notwithstanding the foregoing, the Company shall cause such Registration Statement to be declared effective on or prior to October 16, 2001 (the "Effectiveness Deadline"). 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 notify the Holders in writing (A) within one day following each of the SEC's clearance to request acceleration of effectiveness of the Registration Statement and the Company'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~~ Statement, or prepare and file such additional registration statements, 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 the disposition of all Registrable Securities as necessary to comply with this Agreement) and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements. (iii) ~~As soon as practicable after~~ After the ~~effectiveness of the Registration Statement or the filing date of any amendments or supplements~~registration, ~~as the case may be, furnish, by email to the respective email addresses set forth on the signature pages hereto,~~ 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 ~~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 ~~request~~ 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~~U.S. jurisdictions (except in any such jurisdiction where the registration 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 ~~promptly~~ each Holder ~~that has Registrable Securities included in the Registration Statement~~ immediately of the happening of any event (but not the substance or details of any such ~~event~~event unless specifically requested by a Holder who agrees in writing to maintain the confidentiality of such information) ~~of which the Company has knowledge~~ as a result of which the prospectus (including any supplements thereto or ~~thereof~~thereof 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~~ existing, and, pursuant to Section 2(f) (~~each an “Event”~~and subject to the grace periods in Section 2(b)(iii)), ~~and~~ use its 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 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) ~~List~~ Permit a single firm of counsel, designated as Holders' counsel 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 prior to each filing, and shall not file any document in a form to which such counsel reasonably objects. (viii) Use its best efforts to list the Registrable Securities covered by such Registration Statement with all securities exchange(s) and/or markets on which the Common Stock is then listed and/or quoted and prepare and file any required filings with the ~~Over The Counter Bulletin Board (the “OTCBB”)~~National Association of Securities Dealers, ~~if any,~~ Inc. or any ~~other~~ exchange or market where the Common Stock is then traded. (~~viii~~ix) ~~Take all steps reasonably necessary to enable~~ If applicable, cooperate with the Holders to avail themselves of the prospectus delivery mechanism set forth in Rule 153 (or successor thereto) under the Act. (ixb) ~~Permit a Holder~~Set forth below in this Section 2(b) are (I) events that may arise that the Purchaser considers will interfere with the full enjoyment of their rights under the Exchange Agreement and this Agreement (the "Interfering Events"), ~~if such Holder reasonably believes it might be deemed to be an underwriter or a controlling person~~ and (II) certain remedies applicable in each 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, these events. Paragraphs (i) through (v) of this Section 2(b) describe the Interfering Events, provide a remedy to the Purchaser if an ~~opinion, dated such date, of~~ Interfering Event occurs and provide that the ~~counsel representing~~ Purchaser may require that the Company ~~for the purposes~~ redeem outstanding Securities at a specified price if certain Interfering Events are not timely cured. The occurrence of ~~such registration, in form~~ any Interfering Event shall constitute a default hereunder 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) Notwithstanding the obligations under Section 2(a)(v) or any provision breach of this Agreement. Paragraph (vi) provides, 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 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) in the good faith judgment of the Company, 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 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 counselinter alia, that the failure to suspend the use of the Registration Statement as such would create a material liability or violation under applicable securities laws or regulations. (c) If at any time subsequent to the date such Registration Statement is declared effective, the number of shares of Common Stock registered for resale pursuant to the Registration Agreement is not equal to at least 100% of the Registrable Securities, the Company shall amend the Registration Statement to add such additional securities. In the event that the Company is unable under the securities laws to add such additional securities to the then 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 as of which the need to file the Registration Statement arose. (d) 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 use its best efforts to cause all such Registrable Securities to be included in such registration on the same terms and conditions if payments required 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 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 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 registration shall be included in the following order: (i) first, the Primary Shares; 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 remedy in the case of ~~any such underwritten offering~~ certain of ~~Common Stock~~ the Interfering Events are not paid when due, the Company may be required by the ~~Company that is~~ Purchaser to redeem outstanding Securities at a specified price. The preceding paragraphs in satisfaction of a demand registration pursuant to Section 2(e), the order for inclusion of Primary Shares and Registrable Securities shall be as set forth in that 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~~2(b) ~~except in accordance with the following provisions: (i) The Company shall not be obligated~~ are meant 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 pursuant~~ serve only as an introduction to this Section ~~2(e~~2(b); (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 Stock , are for convenience only, and are not to be considered in applying, construing or were sold has been filed and not withdrawn or has been declared effective within the prior 60 calendar days; (ii) The 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 interpreting this Section 2(e) if the Company determines in good faith that (A) it is in possession of material, non-public information concerning an acquisition, merger, recapitalization, consolidation, reorganization or other material transaction by or of the Company or concerning 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-period2(b). (f) At such time as the Company shall have qualified for the use of Form S-3 promulgated under the Securities Act or any successor form thereto, the Holders shall have the right to request in writing registrations on Form S-3 or such successor form of Registrable Shares held by the Holders in the manner described in Section 2(a), which request or requests shall (i) specify the number of Registrable Shares held by the requesting Holders intended to be sold or disposed of, (ii) state the intended method of disposition of such Registrable Shares held by the 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 a registration statement initiated pursuant to Section 2(e) but shall otherwise be treated as a registration statement initiated pursuant to, 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 similar state securities laws in any jurisdiction in which the Company would be required to qualify to do business or execute a general consent to service of process to effect such registration and filing.

Appears in 1 contract

Samples: Registration Rights Agreement (Hybrid Networks Inc)

Registration Requirements. ~~Within the two (2) month period after the Closing Date and using continued best efforts thereafter, the~~ The Company shall use its reasonable best efforts to effect ~~as soon as practicable~~ 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 all applicable ~~regulations issued under the~~ Securities ~~Act~~Laws) as would permit or facilitate the ~~sale or distribution~~ resale of all the Registrable Securities in the manner (including manner of sale) ~~and in all states~~ reasonably requested by the ~~Holder~~Purchaser in (i) all states and territories of the United States and (ii) the Canadian province of British Columbia. Such reasonable best efforts by the Company shall include, without limitation, ~~the following: The Company shall~~that, ~~as expeditiously as possible: (i) Prepare and file a registration statement with the Commission pursuant~~ on or prior to Rule 415 under the Securities Act on Form 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 SB-2 as soon as Form SB-2 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (“Registration Statement”), The Company shall use its best efforts to cause such Registration Statement and other filings to be declared effective as soon as practicable. Without limiting the foregoingeach Filing Date, the Company ~~will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date. (ii) Prepare~~ prepare and file with the ~~SEC such amendments~~ U.S. Securities and ~~supplements to such~~ Exchange Commission (the “SEC”) a Registration Statement covering the resale of all of the outstanding Registrable Securities that are not then registered on an effective Registration Statement pursuant to applicable U.S. Securities Laws, including Rule 467 and Rule 408 under the Securities Act. Each Registration Statement filed hereunder shall be on Form F-10 (except if the Company is not then eligible to register for resale the Registrable Securities on Form F-10, in which case such registration shall be on another appropriate form in accordance herewith) and shall contain substantially the “Plan of Distribution” attached hereto as Annex A. In addition, on or prior to each Filing Date, the Company shall file with the applicable Canadian Commission(s) a prospectus ~~used in connection~~ supplement to its existing base shelf prospectus (the “Canadian Prospectus” and, collectively referred to with ~~such~~ the Registration Statement as ~~may be necessary to comply with~~ the ~~provisions~~ “Registration Statement/Prospectus”) qualifying the resale of the ~~Securities Act with respect to the disposition of all~~ same securities as those covered by such Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements. (iii) 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 Registrable under applicable Canadian Securities 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 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” laws of all domestic jurisdictions; 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 that has Registrable Securities included in the Registration Statement of the happening of any event (but not the substance or details of any such event) 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 existing (each an “Event”), and use its best efforts to promptly update and/or correct such prospectusLaws. 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 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 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) List the Registrable Securities covered by such Registration Statement with all securities exchange(s) and/or 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 Stock is 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 Holder reasonably believes it might be deemed to be an underwriter or a 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 jurisdictionThereafter, the Company shall use its reasonable best efforts ~~promptly~~ to ~~obtain~~ cause the ~~withdrawal of~~ Registration Statement/Prospectus to be declared effective and shall use its reasonable best efforts to keep such ~~order. (xi) Furnish to the underwriters, if such securities are being sold through underwriters, at the request of such underwriters, on~~ Registration Statement/Prospectus continuously effective under applicable Securities Laws until the date ~~that such~~ on which all Registrable Securities ~~are delivered to the underwriters for sale in connection with a registration pursuant to this Agreement,~~ covered by such Registration Statement/Prospectus (i) ~~an opinion~~have been sold, 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) Notwithstanding the obligations under Section 2(a)(v) thereunder 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 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 stockholdersRule 144, or (ii) in may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the ~~good faith judgment of the Company, it would adversely affect or require premature disclosure of the filing of a Company-initiated registration of any class of its equity securities, then~~ requirement for the Company ~~will have the right~~ to ~~suspend the use of the Registration Statement for two periods of not more than 30 calendar days each~~ be in any 12 month period, 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 would create a material liability or violation under applicable securities laws or regulations. (c) If at any time subsequent to the date such Registration Statement is declared effective, the number of shares of Common Stock registered for resale pursuant to the Registration Agreement is not equal to at least 100% of the Registrable Securities, the Company shall amend the Registration Statement to add such additional securities. In the event that the Company is unable under the securities laws to add such additional securities to the then effective Registration Statement, the Company shall promptly file, in accordance compliance with the ~~procedures set forth herein, an additional Registration Statement with respect to such newly Registrable Securities~~current public information requirement under Rule 144 (the “Effectiveness Period”). The Company shall ~~use its best efforts to cause any such additional~~ telephonically request effectiveness of a Registration ~~Statement, when filed, to become effective as soon as practicable after that date~~ Statement from the SEC as of ~~which~~ 5:00 p.m. Eastern Time on a Trading Day. The Company shall promptly notify the ~~need to file~~ Purchaser via facsimile or by e-mail of the effectiveness of a Registration Statement arose. (d) 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 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,~~ Trading Day that the Company shall have the right to delay such a registration under customary 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 telephonically confirms effectiveness with the ~~successful marketing (including pricing) of primary shares (the “Primary Shares”) proposed to be registered by the Company~~SEC, ~~then the number of Primary Shares and Registrable Securities proposed to be included in such registration~~ which shall be ~~included in~~ the ~~following order: (i) first, the Primary Shares; and (ii) second, the Registrable Securities~~ date 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 Stock by the Company that is in satisfaction of a demand registration pursuant to Section 2(e), the order for inclusion of Primary Shares and Registrable Securities shall be as set forth in that 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 effectiveness 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 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 pursuant to 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 Stock are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 60 calendar days; (ii) The 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, non-public information concerning an acquisition, merger, recapitalization, consolidation, reorganization or other material transaction by or of the Company or concerning 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-periodRegistration Statement. (f) At such time as the Company shall have qualified for the use of Form S-3 promulgated under the Securities Act or any successor form thereto, the Holders shall have the right to request in writing registrations on Form S-3 or such successor form of Registrable Shares held by the Holders in the manner described in Section 2(a), which request or requests shall (i) specify the number of Registrable Shares held by the requesting Holders intended to be sold or disposed of, (ii) state the intended method of disposition of such Registrable Shares held by the 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 a registration statement initiated pursuant to Section 2(e) but shall otherwise be treated as a registration statement initiated pursuant to, 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 similar state securities laws in any jurisdiction in which the Company would be required to qualify to do business or execute a general consent to service of process to effect such registration and filing.

Appears in 1 contract

Samples: Registration Rights Agreement (Clean Energy Fuels Corp.)

Registration Requirements. ~~Within~~ The Company shall file with the ~~two~~ Commission, not later than ten (210) ~~month period~~ business days after the Closing ~~Date~~ Date, a registration statement covering the resale of the Registrable Securities, and ~~using continued best efforts thereafter,~~ shall take all action necessary to qualify the Registrable Securities under state "blue sky" laws as hereinafter provided. The Company shall use its diligent best efforts to effect ~~as soon as practicable~~ the foregoing registration ~~of the Registrable Securities~~ (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) ~~as would permit or facilitate the sale or distribution of~~ all ~~the Registrable Securities~~ in ~~the manner (including manner of sale) and in all states reasonably requested by the Holder~~accordance with this Agreement. Such best efforts by the Company shall include, without limitation, the following~~: The Company shall, as expeditiously as possible~~: (a) The Company shall file (i) ~~Prepare and file a~~ registration ~~statement~~ statements with the Commission pursuant to Rule 415 under the Securities Act on Form ~~SB-2~~ 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 SB-2 as soon as Form SB-2 becomes available to the Company~~Act) covering ~~resales by the Holders as selling stockholders (not underwriters)~~ all of the Registrable Securities to be so registered (“each, a "Registration Statement”"), The Company shall use its best efforts to cause such Registration Statement and other filings to be declared effective as soon as 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. ; (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 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) As soon as practicable after the effectiveness of the Registration Statement or the filing date of any amendments or supplementssales, ~~as the case may be~~provided, ~~furnish~~however, by email to the respective email addresses set forth on the signature pages hereto, 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 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 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” laws of all domestic jurisdictions; 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~~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 (iii) required filings with the National Association of Securities Dealers, Inc. ("NASD") and any exchange where the Shares are traded. The Company shall use its diligent best efforts to have the Registration Statement and other filings declared effective as soon as practicable after the filing of such Registration Statement. (vb) ~~Notify promptly each~~ The Company shall make available for inspection and review by the Holders, the Holders' Representative, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by any Holder, the Holders' Representative or underwriter, any such registration statement or amendment or supplement or any blue sky, NASD or other filing, all financial and other records, pertinent corporate documents and properties of the Company as they may reasonably request for the purpose, 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, however, that the relevant Holder shall first agree in writing with the Company that ~~has Registrable Securities included~~ any information that is reasonably and in good faith designated by the Company in writing as confidential at the time of delivery of such information shall be kept confidential by the Holder and that the Holder will use his or her best efforts to cause its representatives, the Holders' Representative, and such other persons 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 of or the ~~happening~~ use of any ~~event~~ prospectus referred to in this Agreement), (~~but not~~ iii) such information becomes generally available to the ~~substance or details of any such event) of which the Company has knowledge~~ 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. (c) The Company will keep the Holders and the Holders' Representative advised in writing as to initiation of each registration and as to the completion thereof. (d) The Company shall keep such registration effective for the period ending on the earliest to occur of (i) on the third anniversary of the Closing Date, (ii) when the Holders have completed the distribution of the Registrable Securities described in the registration statement relating thereto, or (iii) the date on which all the ~~prospectus~~ Registrable Securities are salable pursuant to Rule 144 promulgated under the Securities Act, without regard to any limitation on volume. (~~including~~ e) The Company shall promptly notify the Holders' Representative in writing by telecopier of any ~~supplements~~ stop order, injunction or other order or requirement of the SEC or any other governmental agency is issued which suspends the effectiveness of any such registration. (f) The Company shall promptly furnish such number of prospectuses and other documents incident thereto as the Holders from time to time may reasonably request. (g) The Company shall promptly notify the Holders' Representative in writing by telecopier if any registration statement with respect to any Registrable Securities is no longer current 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 (each an “Event”)~~existing, ~~and~~ in which case the Holders shall suspend use ~~its best efforts to promptly update and/or correct~~ of such ~~prospectus. Each Holder will hold in confidence and will not make any disclosure of any such Event and any related information disclosed~~ registration statement until notified by the ~~Company except to Holder’s financial and legal advisors. (vi) Notify each Holder of~~ Company. In such event, 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 best efforts to ~~prevent the issuance of~~ correct any ~~stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time~~such matter as soon as practicable so that such registration statement may again be used. (~~vii~~h) List the Registrable Securities covered by such Registration Statement with all securities exchange(s) and/or 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 Stock is 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 Holder reasonably believes it might be deemed to be an underwriter or a 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~~furnish, at the request of ~~such underwriters~~any Holder, on the date that the registration statement with respect to such ~~Registrable Securities are delivered to the underwriters for sale in connection with a registration pursuant to this Agreement~~securities becomes effective, (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~~Holders (provided however that no opinion shall be required with respect to the accuracy of the factual disclosures in such registration statement), and (ii) to the extent permitted by the rules of the AICPA, 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~~Holders. (b) Notwithstanding the 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 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) in the good faith judgment of the Company, 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 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 the failure to suspend the use of the Registration Statement as such would create a material liability or violation under applicable securities laws or regulations. (c) If at any time subsequent to the date such Registration Statement is declared effective, the number of shares of Common Stock registered for resale pursuant to the Registration Agreement is not equal to at least 100% of the Registrable Securities, the Company shall amend the Registration Statement to add such additional securities. In the event that the Company is unable under the securities laws to add such additional securities to the then 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 as of which the need to file the Registration Statement arose. (d) 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 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 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 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 registration shall be included in the following order: (i) first, the Primary Shares; 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 Stock by the Company that is in satisfaction of a demand registration pursuant to Section 2(e), the order for inclusion of Primary Shares and Registrable Securities shall be as set forth in that 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 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 pursuant to 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 Stock are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 60 calendar days; (ii) The 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, non-public information concerning an acquisition, merger, recapitalization, consolidation, reorganization or other material transaction by or of the Company or concerning 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) At such time as the Company shall have qualified for the use of Form S-3 promulgated under the Securities Act or any successor form thereto, the Holders shall have the right to request in writing registrations on Form S-3 or such successor form of Registrable Shares held by the Holders in the manner described in Section 2(a), which request or requests shall (i) specify the number of Registrable Shares held by the requesting Holders intended to be sold or disposed of, (ii) state the intended method of disposition of such Registrable Shares held by the 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 a registration statement initiated pursuant to Section 2(e) but shall otherwise be treated as a registration statement initiated pursuant to, 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 similar state securities laws in any jurisdiction in which the Company would be required to qualify to do business or execute a general consent to service of process to effect such registration and filing.

Appears in 1 contract

Samples: Merger Agreement (Radiance Medical Systems Inc /De/)

Registration Requirements. ~~Within the two (2) month period after the Closing Date and using continued best efforts thereafter, the Company~~ Alteon shall use its best efforts to effect ~~as soon as practicable~~ the registration for 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 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 best efforts by ~~the Company~~ Alteon shall ~~include, without limitation,~~ include the following~~: The Company~~ : (a) Alteon shall, as expeditiously as ~~possible~~reasonably possible after the Closing Date: (i) Prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form ~~SB-2~~ S-3 under the Securities Act (or in the event that ~~the Company~~ Alteon is ineligible to use such form, such other form as ~~the Company~~ Alteon is eligible to use under the Securities ~~Act provided that such other form shall be converted into an SB-2 as soon as Form SB-2 becomes available to the Company~~Act) covering ~~resales by the Holders as selling stockholders (not underwriters) of~~ the Registrable Securities (“"Registration Statement”"). Thereafter, ~~The Company~~ Alteon shall use its best efforts to cause such Registration Statement and other filings to be declared effective ~~as soon as practicable~~prior to the end of the period terminating 90 days following the Closing Date (the "Registration Deadline"). ~~Without limiting the foregoing, the Company will promptly respond~~ Alteon shall provide Holders reasonable opportunity to ~~all SEC comments, inquiries and requests~~review any such Registration Statement or amendment or supplement thereto prior to filing, and Holders shall ~~request acceleration of effectiveness at the earliest possible date~~use their best efforts to complete such review in a timely fashion. (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) 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, 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 ~~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 ~~request~~ 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; 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 ~~that has Registrable Securities included in the Registration Statement~~ immediately of the happening of any event ~~(but not the substance or details of any such event) 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 ~~existing (each an “Event”)~~existing, and use its 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~~ Alteon shall use its 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) ~~List~~ Permit a single firm of counsel, designated as Holders' counsel by 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 prior to each filing, and shall not file any document in a form to which such counsel reasonably objects. (viii) Use its best efforts to list the Registrable Securities covered by such Registration Statement with all securities exchange(s) and/or 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”)~~National Association of Securities Dealers, ~~if any,~~ Inc. or any ~~other~~ exchange or market where the Common ~~Stock is~~ Shares are traded. (~~viii~~ix) 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. (ixb) ~~Permit a Holder~~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 "Interfering Events"), ~~if such Holder reasonably believes it might be deemed to be an underwriter or a controlling person~~ and (II) the remedies applicable in each 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, these events. Paragraphs (i) ~~an opinion~~through (iv) of this Section 2(b) describe the Interfering Events, 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 provide a remedy to the ~~underwriters,~~ Investors if an Interfering Event occurs 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) Notwithstanding the 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 due to the existence of a material development or potential material development involving the Company provide that the ~~Company would be obligated to disclose in the Registration Statement~~Investors may require that Alteon redeem outstanding Preferred Shares at a specified price if certain Interfering Events are not timely cured. Paragraph (v) provides, 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) in the good faith judgment of the Company, 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 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 counselinter alia, that the failure to suspend the use of the Registration Statement as such would create a material liability or violation under applicable securities laws or regulations. (c) If at any time subsequent to the date such Registration Statement is declared effective, the number of shares of Common Stock registered for resale pursuant to the Registration Agreement is not equal to at least 100% of the Registrable Securities, the Company shall amend the Registration Statement to add such additional securities. In the event that the Company is unable under the securities laws to add such additional securities to the then 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 as of which the need to file the Registration Statement arose. (d) 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 use its best efforts to cause all such Registrable Securities to be included in such registration on the same terms and conditions if cash payments required 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 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 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 registration shall be included in the following order: (i) first, the Primary Shares; 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 remedy in the case of ~~any such underwritten offering~~ certain of ~~Common Stock~~ the Interfering Events are not paid when due, Alteon may be required by the ~~Company that is in satisfaction of~~ Investors to repurchase outstanding Preferred Shares at a ~~demand registration pursuant to Section 2(e)~~specified price. Paragraph (vi) provides, the order for inclusion of Primary Shares and Registrable Securities shall be as set forth in that 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, howeverinter alia, that the ~~Company shall~~ Investors may require that Alteon redeem outstanding Preferred Shares at a specified price if certain of the Interfering Events are not ~~be obligated to effect any registration under~~ timely cured. -4- The preceding paragraphs in this Section ~~2(e~~2(b) ~~except in accordance with the following provisions: (i) The Company shall not be obligated~~ are meant 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 pursuant~~ serve only as an introduction to this Section ~~2(e~~2(b); (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 Stock , are for convenience only, and are not to be considered in applying, construing or were sold has been filed and not withdrawn or has been declared effective within the prior 60 calendar days; (ii) The 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 interpreting this Section 2(e) if the Company determines in good faith that (A) it is in possession of material, non-public information concerning an acquisition, merger, recapitalization, consolidation, reorganization or other material transaction by or of the Company or concerning 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-period2(b). (f) At such time as the Company shall have qualified for the use of Form S-3 promulgated under the Securities Act or any successor form thereto, the Holders shall have the right to request in writing registrations on Form S-3 or such successor form of Registrable Shares held by the Holders in the manner described in Section 2(a), which request or requests shall (i) specify the number of Registrable Shares held by the requesting Holders intended to be sold or disposed of, (ii) state the intended method of disposition of such Registrable Shares held by the 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 a registration statement initiated pursuant to Section 2(e) but shall otherwise be treated as a registration statement initiated pursuant to, 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 similar state securities laws in any jurisdiction in which the Company would be required to qualify to do business or execute a general consent to service of process to effect such registration and filing.

Appears in 1 contract

Samples: Registration Rights Agreement (Alteon Inc /De)

Registration Requirements. Within the two (2) month period after the Closing Date and using continued best efforts thereafter, the Company shall use its best efforts to effect as soon as practicable the registration 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 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 best efforts by the Company shall include, without limitation, the following: The Company shall~~, as expeditiously as possible~~: (ia) ~~Prepare~~ No later than forty-five (45) days following the Closing Date, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on ~~Form SB-2 under the Securities Act (or in the event that the Company is ineligible to use~~ such ~~form, such other form~~ appropriate for as the Company is eligible to use under the Securities ~~Act provided that such other form shall be converted into an SB-2 as soon as Form SB-2 becomes available to the Company~~Act) covering ~~resales by~~ the ~~Holders as selling stockholders (not underwriters)~~ resale of the ~~Registrable Securities~~ Shares (“"Registration Statement”"). Thereafter, ~~The~~ the Company shall use its best efforts to cause such Registration Statement and other filings to be declared effective ~~as soon as practicable. Without limiting~~ prior to the ~~foregoing,~~ end of the ~~Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at~~ period termination one hundred twenty (120) days following the ~~earliest possible date~~Closing Date. (iib) 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~~ holders of the Shares of the filing and effectiveness of such Registration Statement and any amendments or supplements. (~~iii~~c) 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, Furnish to each ~~Holder that has Registrable Securities included in the Registration Statement~~ holder of such ~~numbers of~~ Shares such 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~~ holder of such Shares may reasonably ~~request~~ require in order to facilitate the disposition of ~~Registrable Securities owned by such Holder~~the Shares. (ivd) ~~Register~~ Use its best efforts to register and qualify the securities covered by such Registration ~~Statement~~ under ~~the~~ such other securities ~~or “~~of "Blue Sky” " laws of ~~all domestic jurisdictions~~such jurisdictions as shall be reasonably requested by each holder of such Shares; 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 that has Registrable Securities included in the Registration Statement of the happening of any event (but not the substance or details of any such event) 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 existing (each an “Event”), and use its 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. (vie) Notify each ~~Holder~~ holder of such Shares 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 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~~f) ~~List~~ Use its best efforts to list the ~~Registrable Securities covered by such Registration Statement~~ Shares with all securities ~~exchange(s~~exchanges(s) and/or markets on which the ~~Common Stock is~~ Shares are 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 Stock is~~ Shares are traded. (~~viii~~g) ~~Take~~ Bear all ~~steps reasonably necessary to enable Holders to avail themselves~~ expenses incurred in connection with such registration, qualification or compliance with registration pursuant this paragraph except the holder of the ~~prospectus delivery mechanism set forth in Rule 153 (or successor thereto) under~~ Shares shall bear all underwriting discounts and selling commissions applicable to the ~~Act~~sale of such Shares and all fees and disbursements of counsel for such holders. (ixh) Permit a Holder, if such Holder reasonably believes it might be deemed to be an underwriter or a 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) Notwithstanding the 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 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) in the good faith judgment of the Company, 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 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 the failure to suspend the use of the Registration Statement as such would create a material liability or violation under applicable securities laws or regulations. (c) If at any time subsequent to the date such Registration Statement is declared effective, the number of shares of Common Stock registered for resale pursuant to the Registration Agreement is not equal to at least 100% of the Registrable Securities, the Company shall amend the Registration Statement to add such additional securities. In the event that the Company is unable under the securities laws to add such additional securities to the then 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 Use its best efforts to ~~cause any~~ keep such ~~additional Registration Statement~~registration effective until the earliest (i)of December 31, ~~when filed, to become effective as soon as practicable after that date as~~ 2001;(ii) all of ~~which~~ the ~~need to file~~ holders of such Shares having completed the sales or distribution described in the Registration Statement arose. (d) 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 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 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 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 registration shall be included in the following order: (i) first, the Primary Shares; 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 Stock by the Company that is in satisfaction of a demand registration pursuant to Section 2(e), the order for inclusion of Primary Shares and Registrable Securities shall be as set forth in that 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 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 pursuant to this Section 2(e); (y) any registration statement covering less than $500,000 in value of Registrable Securities; or (ziii) ~~any registration statement during any period in which any other registration statement pursuant to which Common Stock are~~ such Shares being able to be sold under Rule 144(k) or ~~were sold has been filed~~ any equivalent successor rule. The parties hereto agree to execute appropriate and ~~not withdrawn or has been declared effective within~~ customary mutual indemnity agreements prior to the ~~prior 60 calendar days; (ii) The 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, non-public information concerning an acquisition, merger, recapitalization, consolidation, reorganization or other material transaction statements as may be reasonably requested by or of the Company or concerning 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-periodeither party. (f) At such time as the Company shall have qualified for the use of Form S-3 promulgated under the Securities Act or any successor form thereto, the Holders shall have the right to request in writing registrations on Form S-3 or such successor form of Registrable Shares held by the Holders in the manner described in Section 2(a), which request or requests shall (i) specify the number of Registrable Shares held by the requesting Holders intended to be sold or disposed of, (ii) state the intended method of disposition of such Registrable Shares held by the 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 a registration statement initiated pursuant to Section 2(e) but shall otherwise be treated as a registration statement initiated pursuant to, 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 similar state securities laws in any jurisdiction in which the Company would be required to qualify to do business or execute a general consent to service of process to effect such registration and filing.

Appears in 1 contract

Samples: Subscription and Investment Representation Agreement (Entrade Inc)

Registration Requirements. ~~Within the two (2) month period after the Closing Date and using continued best efforts thereafter, the Company~~ ACTV shall use its diligent best efforts to effect ~~as soon as practicable~~ the registration 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 sale or distribution of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the ~~Holder~~Holder for purposes of maximizing the proceeds realizable by the Holder from such sale or distribution. Such best efforts by ~~the Company~~ ACTV shall ~~include,~~ include without ~~limitation,~~ limitation the following~~: The Company~~ : (a) ACTV shall, as expeditiously as ~~possible~~reasonably possible after the Closing Date: (i) Prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form ~~SB-2~~ S-3 under the Securities Act (or in the event that ~~the Company~~ ACTV is ineligible to use such form, such other form as ~~the Company~~ ACTV is eligible to use under the Securities ~~Act provided that such other form shall be converted into an SB-2 as soon as Form SB-2 becomes available to the Company~~Act) covering ~~resales by the Holders as selling stockholders (not underwriters) of~~ the Registrable Securities (“"Registration Statement”")~~, The Company~~ . Thereafter ACTV shall use its best efforts to ~~cause~~ have such Registration Statement and other filings declared effective. ACTV shall provide Holders reasonable opportunity to ~~be declared effective as soon as practicable. Without limiting the foregoing, the Company will promptly respond~~ review any such Registration Statement or amendment or supplement thereto prior to ~~all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date~~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~~ holders of the filing and effectiveness of such Registration Statement and any amendments or supplements. (iii) 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, 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 ~~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 ~~request~~ 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;~~ such jurisdictions as shall be reasonably requested by each Holder provided that ~~the Company~~ ACTV 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 ~~that has Registrable Securities included in the Registration Statement~~ immediately of the happening of any event ~~(but not the substance or details of any such event) 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 ~~existing (each an “Event”)~~existing, and use its 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 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 Use its 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) List~~ list the Registrable Securities covered by such Registration Statement with ~~all~~ any securities exchange(s) and/or 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”)~~National Association of Securities Dealers, ~~if any,~~ Inc. or any ~~other~~ exchange or market where the Common ~~Stock is~~ Shares are traded. (~~viii~~i) ~~Take all steps reasonably necessary~~ ACTV agrees that it shall file the Registration Statement complying with the requirements of this Exchange Agreement within 90 days from the Closing Date and shall cause such Registration Statement to ~~enable Holders~~ become effective by December 31, 1996. In the event that such Registration Statement has not been declared effective by December 31, 1996, then ACTV shall pay to ~~avail themselves of the prospectus delivery mechanism set forth~~ each Holder liquidated damages in ~~Rule 153 (or successor thereto) under the Act~~an amount equal to $0.75 per Preferred Share held by such Holder for each 30-day period from and after December 31, 1996 that such Registration Statement is not effective. (ix) Permit a Holder, if such Holder reasonably believes it might be deemed to be an underwriter or a controlling person of the Company, to participate in the preparation of such registration or comparable statement. (xii) In the event of that ACTV fails, refuses or is unable to cause the ~~issuance of any stop order suspending~~ Registrable Securities covered by the ~~effectiveness of a registration statement~~Registration Statement to be listed with the securities exchange(s) and markets on which the Common Stock is traded or at least the NASDAQ Small Capitalization Market at all times on or after the Registration Statement is declared effective, then ACTV shall pay to each Holder liquidated damages in an amount equal to $0.75 per Preferred Share held by such Holder for each 30-day period from and after such failure, refusal or ~~of any order suspending or preventing~~ inability to so list the ~~use of any related prospectus or suspending~~ Registrable Securities until 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~~Registrable Securities are so listed. (xiiii) ~~Furnish~~ In the event any Holder's ability to ~~the underwriters, if such securities are being sold through underwriters, at the request of such underwriters, on the date that such~~ sell Registrable Securities ~~are delivered to~~ under the ~~underwriters~~ Registration Statement is suspended for ~~sale in connection with a registration pursuant to this Agreement,~~ more than thirty (i30) 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) Notwithstanding the obligations under Section 2(a)(v) or any provision of this Agreement, if (i) days in the ~~good faith judgment~~ first instance or for more than ten (10) days for each suspension thereafter ("Suspension Grace Period"), including without limitation by reason of ~~the Company, following consultation~~ any suspension or stop order with ~~legal counsel, it would be detrimental to the Company and its stockholders for resales of Registrable Securities to be made pursuant~~ respect to the Registration Statement ~~due~~ 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 ~~the existence of~~ state a material ~~development~~ fact required to be stated therein or ~~potential material development involving~~ necessary to make the ~~Company~~ statements therein not misleading in light of the circumstances then existing, then ACTV shall pay to each Holder liquidated damages in an amount equal to $0.75 per Preferred Share held by such Holder for each 30-day period from and after the last day of the Suspension Grace Period until such suspension no longer exists. (iv) In the event that ACTV does not have a sufficient number of Common Shares available to satisfy ACTV's obligations to any Holder upon receipt of an Exchange Notice (as defined below) or is otherwise unable to issue such Common Shares (including without limitation by reason of the ~~Company would~~ limits described in Section 11(n) below) in accordance with the terms of this Exchange Agreement upon receipt of an Exchange Notice, then ACTV shall pay to each Holder liquidated damages in an amount equal to $0.75 per Preferred Share held by such Holder for each 30-day period from and after the Exchange Date that ACTV fails or refuses to issue Common Shares in accordance with the terms hereof. (v) In the event that ACTV fails to authorize and reserve an additional 20,000,000 shares of Common Stock for issuance upon exchange of Preferred Shares by the sixtieth (60th) day following a Reserve Increase Event (as defined below in Section 11.g), then ACTV shall pay to each Holder liquidated damages in an amount equal to $0.75 per Preferred Share held by such Holder for each 30-day period from and after such sixtieth (60th) day until such additional shares are so authorized and reserved. (vi) Each liquidated damages provision provided for in the foregoing clauses (i) through (v) shall be in addition to each other liquidated damages provision; provided, however, that in no event shall ACTV be obligated to ~~disclose~~ pay to any Holder liquidated damages in an amount greater than $0.75 per Preferred Share held by such Holder for any 30-day period. All payments required to be made in connection with the above liquidated damages provisions shall be paid in cash by the tenth (10th) day of each calendar month (which payments shall be pro rata on a per diem basis for any period of less than 30 days). In the event that ACTV fails or refuses to pay such liquidated damages payments at such time, then at any Holder's request and option, ACTV shall purchase the Preferred Shares held by such Holder, within five (5) days of such request, at a purchase price equal to the ACTV Premium Redemption Price (as defined in Section 11.m(2) below), provided that such Holder may revoke such request at any time prior to receipt of such payment of such purchase price. (vii) ACTV acknowledges that any failure, refusal or inability by ACTV described in the ~~Registration Statement~~foregoing clauses (i) through (v) will cause the Holders to suffer damages in an amount that will be difficult to ascertain. Accordingly, ~~which disclosure would be premature or otherwise inadvisable at such time or would have~~ the parties agree that it is appropriate to include in this Exchange Agreement a ~~material adverse effect upon~~ provision for liquidated damages. The parties acknowledge and agree that the ~~Company and its stockholders, or (ii) in~~ liquidated damages provisions set forth above represent the parties' good faith ~~judgment~~ effort to quantify such damages and, as such, agree that the form and amount of such liquidated damages are reasonable and will not constitute a penalty. The liquidated damages provided for above are in addition to and not in lieu or limitation of any other rights the Holders may have at law, in equity or under the terms of the ~~Company~~Preferred Shares, ~~it would adversely affect~~ the Investment Agreements or ~~require premature disclosure of the filing of a Company-initiated registration of any class of its equity securities~~this Exchange Agreement, ~~then the Company will have~~ including without limitation the right to ~~suspend~~ specific performance. Each Holder shall be entitled to specific performance of any and all obligations of ACTV in connection with the ~~use~~ registration rights of the ~~Registration Statement for two periods~~ Holders hereunder. In the event 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 the failure to suspend the use~~ of the ~~Registration Statement~~ circumstances described in the foregoing clauses (i) through (v) above, then each of the ACTV Redemption Commencement Date (as ~~such would create a material liability~~ defined in Section 11.m below) and the Maximum Restrictive Covenant Date (as defined in Section 11.j below) shall be moved back 1.5 days for each day that any of the circumstances in clauses (i), (ii), (iii) (without regard to the applicability of the Suspension Grace Period), (iv) or ~~violation under applicable securities laws or regulations~~(v) exist. (c) If the Holder(s) intend to distribute the Registrable Securities by means of an underwriting, the Holder shall so advise ACTV. Any such underwriting may only be administered by investment bankers reasonably satisfactory to ACTV. (d) ACTV shall enter into such customary agreements (including a customary underwriting agreement with the underwriter or underwriters, if any) and take all such other reasonable actions reasonably requested by the Holders in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the Registrable Securities are to be sold in an underwritten offering: (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 offerings; (ii) cause to be delivered to the sellers of Registrable Securities and the underwriter or underwriters, if any, opinions of counsel to ACTV, dated the effective day (or in the case of an underwritten offering, dated the date of delivery of any Registrable Securities sold pursuant thereto) of the Registration Statement, which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the Holders and the underwriter(s), if any, and their counsel and covering, without limitation, such matters as the due authorization and issuance of the securities being registered and compliance with securities laws by ACTV in connection with the authorization, issuance and registration thereof, addressed to the Holders and each underwriter, if any; (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 ~~time~~ Registrable Securities sold pursuant thereto), a "comfort" letter from ACTV'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 offerings; (iv) if an underwriting agreement is entered into, the same shall include customary indemnification and contribution provisions and procedures for secondary underwritten offerings; and (v) ACTV shall deliver such documents and certificates as may be reasonably requested by the Holders of the Registrable Securities being sold or 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 ACTV; the foregoing in this paragraph 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 paragraph 2(d) shall not be required on more than two (2) occasions. (e) ACTV shall make available for inspection by the Holders, a representative or representatives of the Holders, 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 such purposes, all SEC Documents (as defined below) filed subsequent to the ~~date~~ Closing, pertinent corporate documents and properties of ACTV, and cause ACTV'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. (f) Subject to Section 2(b) above, ACTV may suspend the effectiveness of any Registration Statement in the event, and for such period of time as, such a suspension is ~~declared effective,~~ required by the ~~number of shares of Common Stock registered for resale pursuant to the Registration Agreement is not equal to at least 100%~~ rules and regulations of the ~~Registrable Securities, the Company shall amend the Registration Statement to add such additional securities~~Commission. In the event that the Company is unable under the securities laws to add such additional securities to the then 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 ACTV will use its best efforts to cause ~~any~~ such ~~additional Registration Statement, when filed,~~ suspension to ~~become effective as soon as practicable after that date as of which~~ terminate at the ~~need to file the Registration Statement arose~~earliest possible date. (d) 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 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 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 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 registration shall be included in the following order: (i) first, the Primary Shares; 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 Stock by the Company that is in satisfaction of a demand registration pursuant to Section 2(e), the order for inclusion of Primary Shares and Registrable Securities shall be as set forth in that 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 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 pursuant to 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 Stock are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 60 calendar days; (ii) The 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, non-public information concerning an acquisition, merger, recapitalization, consolidation, reorganization or other material transaction by or of the Company or concerning 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) At such time as the Company shall have qualified for the use of Form S-3 promulgated under the Securities Act or any successor form thereto, the Holders shall have the right to request in writing registrations on Form S-3 or such successor form of Registrable Shares held by the Holders in the manner described in Section 2(a), which request or requests shall (i) specify the number of Registrable Shares held by the requesting Holders intended to be sold or disposed of, (ii) state the intended method of disposition of such Registrable Shares held by the 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 a registration statement initiated pursuant to Section 2(e) but shall otherwise be treated as a registration statement initiated pursuant to, 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 similar state securities laws in any jurisdiction in which the Company would be required to qualify to do business or execute a general consent to service of process to effect such registration and filing.

Appears in 1 contract

Samples: Registration Rights and Exchange Agreement (Actv Inc /De/)

Registration Requirements. ~~Within the two (2) month period after the Closing Date and using continued best efforts thereafter, the Company shall~~ Quinxxx xxxll use its best efforts to effect ~~as soon as practicable~~ the registration 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) Quinxxx Xxxres as would permit or facilitate the public sale or distribution of all the ~~Registrable Securities in the manner (including manner of sale) and in all states reasonably requested~~ Quinxxx Shares by the ~~Holder~~Holders. Such best efforts by ~~the Company shall include, without limitation,~~ Quinxxx xxxll include the following~~: The Company shall, as expeditiously as possible~~: ~~(i) Prepare and file a registration statement~~ a. The filing by Quinxxx xx later than 52 days after the Closing Date of the Registration Statement with the Commission pursuant to Rule 415 under the ~~Securities~~ Act on Form ~~SB-2 under the Securities Act~~ S-3 (or ~~in the event that the Company is~~ successor form) or such other appropriate registration form if Quinxxx xx ineligible to use Form S-3. b. Thereafter, using its best efforts to cause such ~~form, such other form as the Company is eligible~~ Registration Statement to ~~use under the Securities Act provided that such other form shall~~ be ~~converted into an SB-2 as soon as Form SB-2 becomes available to the Company) covering resales~~ declared effective by the ~~Holders as selling stockholders (not underwriters)~~ Commission within 187 days following the Closing Date. c. Thereafter, abstaining from taking any affirmative action for a period of three months after the Effective Date that would cause the Commission to declare such Registration Statement to be no longer effective, unless required to do so by any statute, rule or regulation of the ~~Registrable Securities (“~~Act, the Exchange Act or any state securities law, or any other federal or state statute, rule or regulation. d. In the event the Registration ~~Statement”)~~Statement becomes ineffective within the three month period after the Effective Date, ~~The Company shall~~ to use its best efforts to cause such Registration Statement ~~and other filings~~ to again be declared effective ~~as soon as practicable. Without limiting~~ by the ~~foregoing,~~ Commission and maintained effective for a cumulative period of three months after the ~~Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date~~Effective Date. ~~(ii)~~ e. 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 ~~Securities~~ Act with respect to the disposition of all securities covered by such Registration ~~Statement and notify~~ Statement. f. Furnish to the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements. (iii) 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 Registrable Securities included in the Registration Statement such numbers of copies of a ~~current prospectus conforming~~ prospectus, including a preliminary prospectus, in conformity 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~~ they may reasonably request in order to facilitate the disposition of ~~Registrable Securities~~ the Quinxxx Xxxres owned by ~~such Holder~~them. ~~(iv) Register~~ g. Use its best efforts to register and qualify the securities covered by such Registration Statement under ~~the~~ such other securities or “Blue ~~Sky”~~ Sky laws of ~~all domestic jurisdictions~~such jurisdictions as shall be reasonably requested by the Holders; provided that ~~the Company shall~~ Quinxxx xxxll 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)~~ h. Notify ~~promptly~~ each Holder ~~that has Registrable Securities included in the Registration Statement~~ of the happening of any event ~~(but not the substance or details of any such event) of which the Company has knowledge~~ as a result of which the prospectus ~~(including any supplements thereto or thereof)~~ included in ~~such~~ the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing (each an “Event”), and use its 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 advisorsexisting. (vi) Notify each Holder 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 best efforts i. Cause all Quinxxx Xxxres registered pursuant 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) List the Registrable Securities covered by~~ such Registration Statement ~~with all~~ to be listed on each securities ~~exchange(s) and/or markets~~ exchange on which ~~the Common Stock is~~ similar securities issued by Quinxxx are then listed ~~and prepare and file any required filings with~~ not later than the ~~Over The Counter Bulletin Board (the “OTCBB”), if any, or any other exchange or market where the Common Stock is traded~~Effective Date. ~~(viii) Take~~ j. Provide a transfer agent and registrar for 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 Holder reasonably believes it might be deemed to be an underwriter or a 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 Quinxxx Shares registered 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) Notwithstanding the 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 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) in the good faith judgment of the Company, 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 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 the failure to suspend the use of the Registration Statement as such would create a material liability or violation under applicable securities laws or regulations. (c) If at any time subsequent to the date such Registration Statement ~~is declared effective, the~~ and a CUSIP number ~~of shares of Common Stock registered~~ for ~~resale pursuant to the Registration Agreement is not equal to at least 100% of the Registrable Securities, the Company shall amend the Registration Statement to add~~ all such ~~additional securities. In the event that the Company is unable under the securities laws to add such additional securities to the then effective Registration Statement, the Company shall promptly file~~Quinxxx Shares, in ~~accordance with~~ each case not later than 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 as of which the need to file the Registration Statement aroseEffective Date. (d) 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 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 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 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 registration shall be included in the following order: (i) first, the Primary Shares; 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 Stock by the Company that is in satisfaction of a demand registration pursuant to Section 2(e), the order for inclusion of Primary Shares and Registrable Securities shall be as set forth in that 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 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 pursuant to 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 Stock are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 60 calendar days; (ii) The 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, non-public information concerning an acquisition, merger, recapitalization, consolidation, reorganization or other material transaction by or of the Company or concerning 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) At such time as the Company shall have qualified for the use of Form S-3 promulgated under the Securities Act or any successor form thereto, the Holders shall have the right to request in writing registrations on Form S-3 or such successor form of Registrable Shares held by the Holders in the manner described in Section 2(a), which request or requests shall (i) specify the number of Registrable Shares held by the requesting Holders intended to be sold or disposed of, (ii) state the intended method of disposition of such Registrable Shares held by the 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 a registration statement initiated pursuant to Section 2(e) but shall otherwise be treated as a registration statement initiated pursuant to, 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 similar state securities laws in any jurisdiction in which the Company would be required to qualify to do business or execute a general consent to service of process to effect such registration and filing.

Appears in 1 contract

Samples: Stock Swap Agreement (Quintel Communications Inc)

Registration Requirements. ~~Within the two (2) month period after the Closing Date and using continued best efforts thereafter, the Company~~ Cityscape shall use its diligent best efforts to effect ~~as soon as practicable~~ the registration 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 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 best efforts by ~~the Company~~ Cityscape shall ~~include, without limitation,~~ include the following: ~~The Company~~ (a) Cityscape shall, as expeditiously as ~~possible~~reasonably practicable after the Closing Date: (i) Prepare and file ~~a registration statement~~ with the Commission pursuant to Rule 415 under the Securities Act a registration statement on Form ~~SB-2~~ S-3 under the Securities Act (or in the event that ~~the Company~~ Cityscape is ineligible to use such form, such other form as ~~the Company~~ Cityscape is eligible to use under the Securities ~~Act provided that such other form shall be converted into an SB-2 as soon as Form SB-2 becomes available to the Company~~Act) covering ~~resales by the Holders as selling stockholders (not underwriters) of~~ the Registrable Securities (“"Registration Statement”"). Thereafter, ~~The Company~~ Cityscape shall use its best efforts to cause such Registration Statement and other filings to be declared effective ~~as soon as practicable~~prior to 120 days following the Closing Date. ~~Without limiting the foregoing, the Company will promptly respond~~ Cityscape shall provide Holders reasonable opportunity to ~~all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date~~review any such Registration Statement or amendment or supplement thereto prior to filing. (ii) Prepare and file with the ~~SEC~~ Commission such amendments and ~~supplements~~ post-effective amendments to ~~such Registration Statement and the prospectus used in connection with such~~ a Registration Statement as may be necessary to keep such Registration Statement effective for so long as there are any Registrable Securities outstanding; cause the related prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to 2 3 Rule 424 under the Securities Act; and comply with the provisions of the Securities Act applicable to it with respect to the disposition of all ~~securities~~ Registrable Securities covered by such Registration Statement ~~and notify~~ for so long as there are any Registrable Securities outstanding in accordance with the ~~Holders~~ intended methods of disposition by the ~~filing and effectiveness of~~ sellers thereof set forth in such Registration Statement ~~and any amendments~~ or ~~supplements.~~ supplement to such prospectus; (iii) 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, 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 ~~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 ~~request~~ 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; 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 that has Registrable Securities included in the Registration Statement of the happening of any event (but not the substance or details of any such event) 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 existing (each an “Event”), and use its 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 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 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) List the Registrable Securities covered by such Registration Statement with all securities exchange(s) and/or 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 Stock is 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 Holder reasonably believes it might be deemed to be an underwriter or a 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) Notwithstanding the 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 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) in the good faith judgment of the Company, 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 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 the failure to suspend the use of the Registration Statement as such would create a material liability or violation under applicable securities laws or regulations. (c) If at any time subsequent to the date such Registration Statement is declared effective, the number of shares of Common Stock registered for resale pursuant to the Registration Agreement is not equal to at least 100% of the Registrable Securities, the Company shall amend the Registration Statement to add such additional securities. In the event that the Company is unable under the securities laws to add such additional securities to the then 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 as of which the need to file the Registration Statement arose. (d) 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 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 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 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 registration shall be included in the following order: (i) first, the Primary Shares; 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 Stock by the Company that is in satisfaction of a demand registration pursuant to Section 2(e), the order for inclusion of Primary Shares and Registrable Securities shall be as set forth in that 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 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 pursuant to 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 Stock are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 60 calendar days; (ii) The 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, non-public information concerning an acquisition, merger, recapitalization, consolidation, reorganization or other material transaction by or of the Company or concerning 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) At such time as the Company shall have qualified for the use of Form S-3 promulgated under the Securities Act or any successor form thereto, the Holders shall have the right to request in writing registrations on Form S-3 or such successor form of Registrable Shares held by the Holders in the manner described in Section 2(a), which request or requests shall (i) specify the number of Registrable Shares held by the requesting Holders intended to be sold or disposed of, (ii) state the intended method of disposition of such Registrable Shares held by the 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 a registration statement initiated pursuant to Section 2(e) but shall otherwise be treated as a registration statement initiated pursuant to, 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 similar state securities laws in any jurisdiction in which the Company would be required to qualify to do business or execute a general consent to service of process to effect such registration and filing.

Appears in 1 contract

Samples: Registration Rights Agreement (Cityscape Financial Corp)

Registration Requirements. ~~Within the two (2) month period after the Closing Date and using continued best efforts thereafter, the~~ The Company shall use its best efforts to effect ~~as soon as practicable~~ the registration 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 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 best efforts by the Company shall ~~include, without limitation,~~ include the following: : (a) The Company shall, as expeditiously as ~~possible~~reasonably possible after the Closing Date: (i) ~~Prepare~~ But in any event within 45 days thereafter, prepare and file a registration statement with the Commission pursuant to Rule ~~415~~ 4l5 under the Securities Act on Form ~~SB-2~~ 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 SB-2 as soon as Form SB-2 becomes available to the Company~~Act) 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, ~~The~~ or necessary to make the statements therein not misleading. 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 full exercise of the Warrants to prevent dilution resulting from stock splits, stock dividends or similar transactions or (ii) by reason of changes in the Purchase Price. Thereafter, the Company shall use its best efforts to cause such Registration Statement and other filings to be declared effective as soon as ~~practicable. Without limiting the foregoing, the Company will promptly respond to all SEC comments, inquiries and requests~~possible, and in any event prior to 120 days following the Closing Date. The number of shares of Common Stock initially included in such Registration Statement shall ~~request acceleration~~ be no less than 150% of ~~effectiveness at~~ the ~~earliest possible date~~number of Warrant Shares that are then issuable upon exercise of the Warrants, without regard to any limitation on the Investor's ability to convert the Preferred Stock or exercise the Warrants. The Company acknowledges that the number of shares initially included in the Registration Statement represents a good faith estimate of the maximum number of shares issuable upon exercise of the Warrants. (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 and to comply with the provisions of the ~~Securities~~ 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 the Registration Statement and notify the Holders of the filing and effectiveness of such Registration Statement and any amendments or supplements. In the event the number of shares available under a Registration Statement filed pursuant to this Agreement is insufficient to cover all of the Registrable Securities issued or issuable upon and exercise of the Warrants, the Company shall amend the Registration Statement, or file a new Registration Statement (on the short form available therefore, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within twenty (20) business days after the necessity therefor arises (based on the market price of the Common Stock and other relevant factors on which the Company reasonably elects to rely). The Company shall use its best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. The provisions of Section 2(b)(i) below shall be applicable with respect to such obligation, with the one hundred and twenty (120) days running from the day after the date on which the Company reasonably first determines (or reasonably should have determined) the need therefor. (iii) 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, 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 ~~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 ~~request~~ require in order to facilitate the disposition of Registrable Securities owned by such ~~Holder~~Holder 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 each Investor 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 any Registration Statement or any amendment thereto to be declared effective by the SEC as soon as 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 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” " 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 (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; 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 best efforts to obtain such permission or approval. (v) Notify ~~promptly~~ each Holder ~~that has Registrable Securities included in the Registration Statement~~ immediately of the happening of any event ~~(but not the substance or details of any such event) 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 ~~existing (each an “Event”)~~existing, and use its best efforts to promptly update and/or correct such ~~prospectus. Each~~ prospectus to correct such untrue statement or omission, and deliver such number of copies of such supplement or amendment to each Holder ~~will hold in confidence and will not make any disclosure of any~~ as such ~~Event and any related information disclosed by the Company except to Holder’s financial and legal advisors~~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 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 by 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 prior to each 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. The sections of the Registration Statement covering information with respect to the Investors, the Investors beneficial ownership of securities of the Company or the Investors' intended method of disposition of Registrable Securities shall conform to the information provided to the Company by each of the Investors. (viii) List the Registrable Securities covered by such Registration Statement with all securities exchange(s) and/or 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”)~~National Association of Securities Dealers, ~~if any,~~ Inc. or any ~~other~~ exchange or market where the Common ~~Stock is~~ Shares are traded. (~~viii~~ix) ~~Take~~ If applicable, 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. (ixx) ~~Permit~~ The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company unless (a) disclosure of such information is necessary to comply with federal or state securities laws, (b) the disclosure of such information is necessary to avoid or correct a ~~Holder~~misstatement or omission in any Registration Statement, if (c) the release of such ~~Holder reasonably believes~~ 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 ~~might be deemed~~ shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court of governmental body of competent jurisdiction or through other means, give prompt notice to ~~be an underwriter or a controlling person of~~ such Investor prior to making such disclosure, and allow the ~~Company~~Investor, at its expense, 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~~undertake appropriate action to prevent disclosure of, or ~~of any~~ obtain a protective order ~~suspending or preventing the use of any related prospectus or suspending the qualification of any common stock included in~~ for, such ~~registration statement for sale in any jurisdiction, the Company shall use its reasonable efforts promptly to obtain the withdrawal of such order~~information. (xi) ~~Furnish to~~ The Company shall provide a 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 and the managing underwriter or underwriters, if ~~such securities are being sold through underwriters~~any, at to facilitate the ~~request~~ timely preparation and delivery of ~~such underwriters, on the date that such Registrable Securities are delivered~~ certificates (not bearing any restrictive legends with respect to ~~the underwriters for sale in connection with a registration pursuant to this Agreement, (i~~transferability) ~~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) Notwithstanding the 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~~ offered pursuant to the Registration Statement ~~due~~ and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or 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 ~~existence of a material development or potential material development involving~~ transfer agent for the ~~Company that~~ Registrable Securities (with copies to the ~~Company would be obligated to disclose~~ Investors whose Registrable Securities are included in such Registration Statement) an instruction in the ~~Registration Statement, which disclosure would be premature or otherwise inadvisable at~~ form attached hereto as Exhibit 1 and an opinion of such ~~time or would have a material adverse effect upon the Company and its stockholders, or (ii)~~ counsel in the good faith judgment of the Company, 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 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 the failure to suspend the use of the Registration Statement form attached hereto as ~~such would create a material liability or violation under applicable securities laws or regulations~~Exhibit 2. (cxiii) ~~If at any time subsequent to~~ At the ~~date such Registration Statement is declared effective,~~ reasonable request of the ~~number~~ holders of ~~shares of Common Stock registered for resale pursuant to the Registration Agreement is not equal to at least 100%~~ a majority-in-interest of the Registrable Securities, the Company shall ~~amend~~ 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 the Registration Statement as may be necessary in order to ~~add~~ change the plan of distribution set forth in such ~~additional securities. In the event that the Company is unable under the securities laws to add such additional securities to the then effective~~ Registration Statement. (xiv) From and after the date of this Agreement, the Company shall ~~promptly file~~not, and shall not agree to, allow the holders of any securities of the Company to include any of their securities in ~~accordance with the procedures set forth herein, an additional~~ any Registration Statement ~~with respect to such newly~~ under Section 2(a) hereof or any amendment or supplement thereto under Section 3(b) hereof without the consent of the holders of a majority-in-interest of the Registrable Securities. The Company shall ~~use its best efforts~~ take all other reasonable actions necessary to ~~cause any such additional~~ expedite and facilitate disposition by the Investors of Registrable Securities pursuant to the Registration Statement~~, when filed,~~ . The registration required by this Agreement shall be effected by means of the same registration statement to ~~become effective as soon as practicable after that date~~ be filed pursuant to the Registration Rights Agreement contemplated by the Convertible Preferred Stock Purchase Agreement dated as of ~~which~~ June 26, 1998, between the ~~need to file~~ Company and the ~~Registration Statement arose~~persons and entities specified on Schedule I thereto. (db) ~~If at any time during~~ Set forth below in this Section 2(b) are (I) events that may arise that the ~~term~~ Investors consider will interfere with the full enjoyment of their rights under this Agreement (the "Interfering Events"), and (II) certain remedies applicable in each of these events. Paragraphs (i) through (iv) of this ~~Agreement~~Section 2(b) describe the Interfering Events, and provide a remedy to the ~~registration statement described~~ Investors if an Interfering Event occurs. Paragraph (v) provides, INTER ALIA, that if cash payments required as the remedy in ~~Section 2(a) is not effective with respect to some or all~~ the case of certain 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)Interfering Events are not paid when due, the Company ~~shall use its best efforts~~ may be required by the Investors 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~~redeem outstanding Warrant Shares at a specified price. Paragraph (vi) provides, ~~however~~INTER ALIA, that the ~~Company shall~~ Investors have the right to ~~delay such a registration under customary circumstances for a period not~~ specific performance. The preceding paragraphs 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~~ this Section 2(b) are meant to be included in such registration would interfere materially with the successful marketing (including 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 registration shall be included in the following order: (i) first, the Primary Shares; and (ii) second, the Registrable Securities requested to be included in such registration pursuant serve only as an introduction 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 Stock by the Company that is in satisfaction of a demand registration pursuant to Section 2(e2(b), ~~the order~~ are for ~~inclusion of Primary Shares~~ convenience only, and ~~Registrable Securities shall~~ are not to be ~~as set forth~~ considered in ~~that 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~~applying, ~~the registration statement described in Section 2(a) is not effective with respect to some~~ construing 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 interpreting this Section 2(e) except in accordance with the following provisions: (i) The Company shall 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 pursuant to this Section 2(e2(b); (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 Stock are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 60 calendar days; (ii) The 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, non-public information concerning an acquisition, merger, recapitalization, consolidation, reorganization or other material transaction by or of the Company or concerning 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) At such time as the Company shall have qualified for the use of Form S-3 promulgated under the Securities Act or any successor form thereto, the Holders shall have the right to request in writing registrations on Form S-3 or such successor form of Registrable Shares held by the Holders in the manner described in Section 2(a), which request or requests shall (i) specify the number of Registrable Shares held by the requesting Holders intended to be sold or disposed of, (ii) state the intended method of disposition of such Registrable Shares held by the 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 a registration statement initiated pursuant to Section 2(e) but shall otherwise be treated as a registration statement initiated pursuant to, 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 similar state securities laws in any jurisdiction in which the Company would be required to qualify to do business or execute a general consent to service of process to effect such registration and filing.

Appears in 1 contract

Samples: Registration Rights Agreement (Able Telcom Holding Corp)

Registration Requirements. ~~Within~~ At any time on or before September 10, 2021, the ~~two (2) month period after~~ Holders shall collectively be entitled to make a single, one-time demand for registration hereunder of any of the ~~Closing Date and using continued best efforts thereafter~~Registrable Securities upon written request to the Company by the Holders holding in the aggregate a majority of the Total Shares. Upon receipt of such written request, the Company shall use ~~its best~~ commercially reasonable efforts to effect ~~as soon as practicable~~ the registration of the Registrable Securities for which the Holders requested registration (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 sale or distribution of ~~all the~~ such Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the ~~Holder~~Holders holding in the aggregate a majority of the Total Shares. Such ~~best~~ commercially reasonable efforts by the Company shall include, without limitation, the following: : (a) The Company shall, as expeditiously as possible: (i) Prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form ~~SB-2~~ 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 SB-2 as soon as Form SB-2 becomes available to the Company~~Act) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (“Registration Statement”)~~, The~~ . Thereafter the Company shall use ~~its best~~ commercially reasonable efforts to cause such Registration Statement and other filings to be declared effective as soon as 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 datepossible. (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) 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, 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 ~~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 ~~request~~ 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; 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 that has Registrable Securities included in the Registration Statement of the happening of any event (but not the substance or details of any such event) 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 existing (each an “Event”), and use ~~its best~~ commercially reasonable 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~~Company. (vi) Notify each Holder 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 best~~ commercially reasonable 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) List the Registrable Securities covered by such Registration Statement with all securities exchange(s) and/or markets on which the ~~Common~~ Preferred Stock is then listed and prepare and file any required filings with the ~~Over The Counter Bulletin Board (the “OTCBB”), if any,~~ Nasdaq Global Market or any other exchange or market where the ~~Common~~ shares of Preferred Stock is 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 Holder reasonably believes it might be deemed to be an underwriter or a 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) Notwithstanding the 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 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) in the good faith judgment of the Company, 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 ~~two periods~~ a period of not more than 30 consecutive calendar ~~days each in any 12 month period~~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 would create a risk of a material liability or violation under applicable securities laws or regulations. (c) During the registration period, the Company will make available, upon reasonable advance notice during normal business hours, for inspection by any Holder whose Registrable Securities are being sold pursuant to a Registration Statement, all pertinent financial and other records, pertinent corporate documents and properties of the Company (collectively, 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 its officers, directors and employees to supply all information that any Holder may reasonably request for purposes of performing such due diligence. (d) Each Holder will hold in confidence, use only in connection with the contemplated offering and not make any disclosure of all Records and other information that the Company determines in good faith to be confidential, and of which determination the Holders are so notified, unless (i) the disclosure of such Records is necessary to avoid or correct a 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 that needs to know the information as determined in good faith by the 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 disclosure of 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 Company and allow the Company, at the Company’s expense, 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) If at the Holders become entitled, pursuant to an event described in clause (ii) or (iii) of the definition of Registrable Securities, to receive any ~~time~~ securities in respect of Registrable Securities that were already included in a Registration Statement, subsequent to the date such Registration Statement is declared effective, the number of shares of Common Stock registered for resale pursuant to the Registration Agreement is not equal to at least 100% of the Registrable Securities, the Company shall amend the Registration Statement to add such additional securities. In the event that and the Company is unable under the securities laws to add such ~~additional~~ securities to the then 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~~ commercially reasonable efforts to cause any such additional Registration Statement, when filed, to become effective ~~as soon as practicable after~~ within 30 days of that date ~~as of which~~ that the need to file the Registration Statement arose~~. (d) If at any time during the term~~ . All of ~~this Agreement,~~ the registration ~~statement described in Section 2(a) is not effective with respect~~ rights and remedies under this Agreement shall apply to ~~some or all~~ the registration of ~~the~~ such new 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 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 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 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 registration shall be included in the following order: (i) first, the Primary Shares; 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 Stock by the Company that is in satisfaction of a demand registration pursuant to Section 2(e), the order for inclusion of Primary Shares and Registrable Securities shall be as set forth in that 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 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 pursuant to 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 Stock are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 60 calendar days; (ii) The 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, non-public information concerning an acquisition, merger, recapitalization, consolidation, reorganization or other material transaction by or of the Company or concerning 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) At such time as the Company shall have qualified for the use of Form S-3 promulgated under the Securities Act or any successor form thereto, the Holders shall have the right to request in writing registrations on Form S-3 or such successor form of Registrable Shares held by the Holders in the manner described in Section 2(a), which request or requests shall (i) specify the number of Registrable Shares held by the requesting Holders intended to be sold or disposed of, (ii) state the intended method of disposition of such Registrable Shares held by the 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 a registration statement initiated pursuant to Section 2(e) but shall otherwise be treated as a registration statement initiated pursuant to, 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 similar state securities laws in any jurisdiction in which the Company would be required to qualify to do business or execute a general consent to service of process to effect such registration and filing.

Appears in 1 contract

Samples: Registration Rights Agreement (Digirad Corp)

Registration Requirements. ~~Within the two (2) month period after the Closing Date and using continued best efforts thereafter, the~~ The Company shall use ~~its best~~ all reasonable efforts to effect ~~as soon as practicable~~ the registration 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 soon as practicable after the Closing Date, and in any event not later than one year after the Closing Date, as would permit or facilitate the 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 ~~best~~ reasonable efforts by the Company shall include, without limitation, the following: : (a) The Company shall, as expeditiously as possible: (i) Prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form 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 SB-2 as soon as Form SB-2 becomes available to the Company) covering resales by the Holders as selling stockholders (not underwriters) of the Registrable Securities (“Registration Statement”), . The Company shall use ~~its best~~ all reasonable efforts to cause such Registration Statement and other filings to be declared effective as soon as 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. (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) 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 ~~Registrable Securities~~ Common Stock 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 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” laws of all domestic jurisdictions; 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 that has Registrable Securities included in the Registration Statement of the happening of any event (but not the substance or details of any such event) 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 existing (each an “Event”), and use ~~its best~~ all reasonable 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~~Company. (vi) Notify each Holder 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 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) List the Registrable Securities covered by such Registration Statement with all securities exchange(s) and/or 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 Stock is 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 Holder reasonably believes it might be deemed to be an underwriter or a 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) Notwithstanding the 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 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) in the good faith judgment of the Company, 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 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 the failure to suspend the use of the Registration Statement as such would create a material liability or violation under applicable securities laws or regulations. In any event in which the Company suspends use of the Registration Statement pursuant to this paragraph, the Company shall furnish to the Holders a certificate signed by the Chief Executive Officer of the Company stating the Company’s good faith judgment as set forth in clauses (i) and/or (ii) of the foregoing sentence; the Company shall (A) use all reasonable efforts to lift the suspension at the earliest practicable time; (B) extend the period of effectiveness for the Registration Statement for each day of suspension; and (C) deliver written notice to the Holders when such suspension is no longer necessary, within the periods permitted hereby. (c) If at any time subsequent to the date such Registration Statement is declared effective, the number of shares of Common Stock registered for resale pursuant to the Registration ~~Agreement~~ Statement is not equal to at least 100% of the Registrable Securities, the Company shall amend the Registration Statement to add such additional securities. In the event that the Company is unable under the securities laws to add such additional securities to the then 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~~ all reasonable efforts to cause any such additional Registration Statement, when filed, to become effective as soon as practicable after that date ~~as of which~~ that the need to file the Registration Statement arose. (d) If Subject to any preexisting rights granted to others by the Company, 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~~ provided that such “piggyback” registration rights or shall be exercisable only pari passu with 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 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 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 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 registration shall be included in the following order: (i) first, the Primary Shares; 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 Stock by the Company that is in satisfaction of a demand registration pursuant to Section 2(e), the order for inclusion of Primary Shares and Registrable Securities shall be as set forth in that section. (e) If at any time during the period beginning ~~180 calendar days~~ one year 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~~ 50,000 in value of the Registrable Securities (determined as of the Closing Date) 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~~ all reasonable 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 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 pursuant to this Section 2(e); or (y) any registration statement covering less than $~~500,000~~ 50,000 in value of Registrable Securities; or (z) any registration statement during any period in which any other registration statement pursuant to which Common Stock are to be or were sold has been filed and not withdrawn or has been declared effective within Securities determined as of the ~~prior 60 calendar days~~Closing Date; (ii) The Company may delay the filing or effectiveness of any registration statement pursuant to this Section 2(e) 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, non-public information concerning an acquisition, merger, recapitalization, consolidation, reorganization or other material transaction by or of the Company or concerning 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) At such time as the Company shall have qualified for the use of Form S-3 promulgated under the Securities Act or any successor form thereto, the Holders shall have the right to request in writing registrations on Form S-3 or such successor form of Registrable Shares held by the Holders in the manner described in Section 2(a), which request or requests shall (i) specify the number of Registrable Shares held by the requesting Holders intended to be sold or disposed of, (ii) state the intended method of disposition of such Registrable Shares held by the Holders and (iii) relate to Registrable Shares having an anticipated aggregate offering price of at least $~~500,000~~50,000 in value of Registrable Securities determined as of the Closing Date. A requested registration on Form S-3 or any such successor form in compliance with Section 4 shall not count as a registration statement initiated pursuant to Section 2(e) but shall otherwise be treated as a registration statement initiated pursuant to, 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 similar state securities laws in any jurisdiction in which the Company would be required to qualify to do business or execute a general consent to service of process to effect such registration and filing. (g) With a view to making available to the Holders the benefit of certain SEC rules and regulations which may permit the sale of the Registrable Securities to the public without registration, the Company agrees to use all reasonable efforts to: (i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act so long as the Company remains subject to the periodic reporting requirements under Sections 13 or 15(d) of the Exchange Act; (ii) file with the SEC, in a timely manner, all reports and other documents required of the Company under the Exchange Act; and (iii) so long as a Holder owns any Registrable Securities, furnish to such Holder forthwith upon request: (A) a written statement by the Company as to the Company’s compliance with the reporting requirements of Rule 144 under the Securities Act and of the Exchange Act; (B) a copy of the most recent annual or quarterly report of the Company; and (C) such other reports and documents as a Holder may reasonably request in availing itself of such SEC rule or regulation allowing the Holder to sell any such securities without registration. (h) Subject to any preexisting rights granted to others by the Company, the Company shall not grant to any person other than the Holders, whether by agreement or otherwise, any registration rights that are senior and/or superior to the rights conferred upon the Holders hereunder (“Senior Registration Rights”), unless the Company simultaneously grants to the Holders such Senior Registration Rights, without requiring any consideration therefor from the Holders; provided, however that this Section 2(h) shall not apply to any issuance by the Company of securities with Senior Registration Rights, in a bona fide single transaction, if the Company receives, in consideration for such issuance, an aggregate amount of cash and/or property (valued at its fair market value) that exceeds $1,000,000.

Appears in 1 contract

Samples: Registration Rights Agreement (BPO Management Services)

Registration Requirements. ~~Within the two (2) month period after the Closing Date and using continued best efforts thereafter, the Company~~ TXB shall use its best efforts to effect ~~as soon as practicable~~ the registration 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 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 best efforts by ~~the Company~~ TXB shall ~~include, without limitation,~~ include the following~~: The Company~~ : (a) TXB shall, as expeditiously as ~~possible~~reasonably possible after the Closing Date: (i) Prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on Form ~~SB-2 under the Securities Act~~ S-3 (or in the event that ~~the Company~~ TXB is ineligible to use such form, such other form as ~~the Company~~ TXB is eligible to use under the Securities ~~Act provided that such other form shall be converted into an SB-2 as soon as Form SB-2 becomes available to the Company~~Act) covering ~~resales by the Holders as selling stockholders (not underwriters) of~~ the Registrable Securities (“"Registration Statement”"). In the event that TXB is ineligible to use Form S-3 and files such other form as TXB is eligible to use, ~~The Company~~ as soon as TXB becomes eligible to use Form S-3, TXB will convert such registration to a Form S-3 registration. Thereafter TXB shall use its best efforts to cause such Registration Statement and other filings to be declared effective ~~as soon as practicable~~prior to 90 days following the Closing Date. ~~Without limiting the foregoing, the Company will promptly respond~~ TXB shall provide Holders reasonable opportunity to ~~all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at the earliest possible date~~review any such Registration Statement or amendment or supplement thereto 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) 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, 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 ~~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 ~~request~~ 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~~such jurisdictions as shall be reasonably requested by each Holder; provided that ~~the Company~~ TXB 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 ~~that has Registrable Securities included in the Registration Statement~~ immediately of the happening of any event ~~(but not the substance or details of any such event) 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 ~~existing (each an “Event”)~~existing, and use its 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~~ TXB shall use its 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) ~~List~~ Permit a single firm of counsel, designated as Holders' counsel by a majority in interest of 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 prior to each filing, and shall not file any document in a form to which such counsel reasonably objects. (viii) Use its best efforts to list the Registrable Securities covered by such Registration Statement with all securities exchange(s) and/or 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”)~~National Association of Securities Dealers, ~~if any,~~ Inc. or any ~~other~~ exchange or market where the Common ~~Stock is~~ Shares are traded. (~~viii~~ix) 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. (ixb) ~~Permit a Holder~~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 "Interfering Events"), ~~if such Holder reasonably believes it might be deemed to be an underwriter or a controlling person~~ and (II) the remedies applicable in each 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, these events. Paragraphs (i) ~~an opinion~~through (iv) of this Section 2(b) describe the Interfering Events, 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 provide a remedy to the ~~underwriters,~~ Investors if an Interfering Event occurs 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) Notwithstanding the 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 due to the existence of a material development or potential material development involving the Company provide that the ~~Company would be obligated to disclose in the Registration Statement~~Investors may require that TXB redeem outstanding Preferred Shares at a specified price if certain Interfering Events are not timely cured. Paragraph (v) provides, 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) in the good faith judgment of the Company, 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 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 counselinter alia, that the failure to suspend the use of the Registration Statement as such would create a material liability or violation under applicable securities laws or regulations. (c) If at any time subsequent to the date such Registration Statement is declared effective, the number of shares of Common Stock registered for resale pursuant to the Registration Agreement is not equal to at least 100% of the Registrable Securities, the Company shall amend the Registration Statement to add such additional securities. In the event that the Company is unable under the securities laws to add such additional securities to the then 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 as of which the need to file the Registration Statement arose. (d) 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 use its best efforts to cause all such Registrable Securities to be included in such registration on the same terms and conditions if cash payments required 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 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 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 registration shall be included in the following order: (i) first, the Primary Shares; 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 remedy in the case of ~~any such underwritten offering~~ certain of ~~Common Stock~~ the Interfering Events are not paid when due, TXB may be required by the ~~Company that is in satisfaction of~~ Investors to repurchase outstanding Preferred Shares at a ~~demand registration pursuant to Section 2(e)~~specified price. Paragraph (vi) provides, the order for inclusion of Primary Shares and Registrable Securities shall be as set forth in that 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, howeverinter alia, that the ~~Company shall~~ Investors may require that TXB redeem outstanding Preferred Shares at a specified price if Interfering Events are not ~~be obligated to effect any registration under~~ timely cured. The preceding paragraphs in this Section ~~2(e~~2(b) ~~except in accordance with the following provisions: (i) The Company shall not be obligated~~ are meant 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 pursuant~~ serve only as an introduction to this Section ~~2(e~~2(b); (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 Stock , are for convenience only, and are not to be considered in applying, construing or were sold has been filed and not withdrawn or has been declared effective within the prior 60 calendar days; (ii) The 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 interpreting this Section 2(e) if the Company determines in good faith that (A) it is in possession of material, non-public information concerning an acquisition, merger, recapitalization, consolidation, reorganization or other material transaction by or of the Company or concerning 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-period2(b). (f) At such time as the Company shall have qualified for the use of Form S-3 promulgated under the Securities Act or any successor form thereto, the Holders shall have the right to request in writing registrations on Form S-3 or such successor form of Registrable Shares held by the Holders in the manner described in Section 2(a), which request or requests shall (i) specify the number of Registrable Shares held by the requesting Holders intended to be sold or disposed of, (ii) state the intended method of disposition of such Registrable Shares held by the 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 a registration statement initiated pursuant to Section 2(e) but shall otherwise be treated as a registration statement initiated pursuant to, 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 similar state securities laws in any jurisdiction in which the Company would be required to qualify to do business or execute a general consent to service of process to effect such registration and filing.

Appears in 1 contract

Samples: Registration Rights Agreement (Texas Biotechnology Corp /De/)

Registration Requirements. Within the two (2) month period after the Closing Date and using continued best efforts thereafter, the Company shall use its best efforts to effect as soon as practicable the registration 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 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 best efforts by the Company shall include, without limitation, the following: The Company shall~~, as expeditiously as possible~~: (ia) ~~Prepare~~ No later than forty-five (45) days following the Closing Date, prepare and file a registration statement with the Commission pursuant to Rule 415 under the Securities Act on ~~Form SB-2 under the Securities Act (or in the event that the Company is ineligible to use~~ such ~~form, 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 SB-2 as soon as Form SB-2 becomes available to the Company~~Act) covering ~~resales by~~ the ~~Holders as selling stockholders (not underwriters)~~ resale of the ~~Registrable Securities (“Registration~~ Shares("Registration Statement”"). Thereafter, ~~The~~ the Company shall use its best efforts to cause such Registration Statement and other filings to be declared effective ~~as soon as practicable. Without limiting~~ prior to the ~~foregoing,~~ end of the ~~Company will promptly respond to all SEC comments, inquiries and requests, and shall request acceleration of effectiveness at~~ period terminating one hundred twenty (120) days following the ~~earliest possible date~~Closing Date. (iib) 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~~ holders of the Shares of the filing and effectiveness of such Registration Statement and any amendments or supplements. (~~iii~~c) 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, Furnish to each ~~Holder that has Registrable Securities included in the Registration Statement~~ holder of such ~~numbers of~~ Shares such 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~~ holder of such Shares may reasonably ~~request~~ require in order to facilitate the disposition of ~~Registrable Securities owned by such Holder~~the Shares. (ivd) ~~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~~such jurisdictions as shall be reasonably requested by each holder of such Shares; 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 that has Registrable Securities included in the Registration Statement of the happening of any event (but not the substance or details of any such event) 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 existing (each an “Event”), and use its 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. (vie) Notify each ~~Holder~~ holder of such Shares 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 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~~f) ~~List~~ Use its best efforts to list the ~~Registrable Securities covered by such Registration Statement~~ Shares with all securities ~~exchange(s~~exchanges(s) and/or markets on which the ~~Common Stock is~~ Shares are 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 Stock is~~ Shares are traded. (~~viii~~g) ~~Take~~ Bear 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 Holder reasonably believes it might be deemed to be an underwriter or a 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 expenses incurred in connection with a such registration, qualification or compliance with registration pursuant to this ~~Agreement,~~ paragraph except the holder of the Shares shall bear all underwriting discounts and selling commissions applicable to the sale of such Shares and all fees and disbursements of counsel for such holders. (h) Use its best efforts to keep such registration effective until the earliest (i) ~~an opinion~~of January 6, 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 2002; (ii) ~~a comfort letter dated such date, from the independent certified public accountants~~ all of the ~~Company,~~ holders of such Shares having completed the sales or distribution described in ~~form and substance as is customarily given by independent certified public accountants~~ the Registration Statement relating thereto; or (iii) such Shares being able to ~~underwriters in an underwritten public offering, addressed solely to the underwriters, which letter specifies the parties entitled to rely thereon~~be sold under Rule 144(k) or any equivalent successor rule. (~~b) Notwithstanding the obligations under Section 2(a)(v) or any provision of this Agreement, if (~~i) Notify each holder of such Shares immediately 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 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) in the good faith judgment of the Company, 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 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 the failure to suspend the use of the Registration Statement as such would create a material liability or violation under applicable securities laws or regulations. (c) If at any time subsequent to the date such Registration Statement is declared effective, the number of shares of Common Stock registered for resale pursuant to the Registration Agreement is not equal to at least 100% of the Registrable Securities, the Company shall amend the Registration Statement to add such additional securities. In the event that the ~~Company is unable under the securities laws~~ Registration Statement has become stale or contains a material misstatement or material omission. The parties hereto agree to ~~add such additional securities~~ execute appropriate and customary mutual indemnity agreements prior to the then 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 as of which the need to file the Registration Statement arose. (d) 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 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 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 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 registration shall be included in the following order: (i) first, the Primary Shares; 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 Stock by the Company that is in satisfaction of a demand registration pursuant to Section 2(e), the order for inclusion of Primary Shares and Registrable Securities shall be as set forth in that 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 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 pursuant to 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 Stock are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 60 calendar days; (ii) The 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, non-public information concerning an acquisition, merger, recapitalization, consolidation, reorganization or other material transaction statements as may be reasonably requested by or of the Company or concerning 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-periodeither party. (f) At such time as the Company shall have qualified for the use of Form S-3 promulgated under the Securities Act or any successor form thereto, the Holders shall have the right to request in writing registrations on Form S-3 or such successor form of Registrable Shares held by the Holders in the manner described in Section 2(a), which request or requests shall (i) specify the number of Registrable Shares held by the requesting Holders intended to be sold or disposed of, (ii) state the intended method of disposition of such Registrable Shares held by the 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 a registration statement initiated pursuant to Section 2(e) but shall otherwise be treated as a registration statement initiated pursuant to, 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 similar state securities laws in any jurisdiction in which the Company would be required to qualify to do business or execute a general consent to service of process to effect such registration and filing.

Appears in 1 contract

Samples: Subscription and Investment Representation Agreement (Entrade Inc)

Common use of Registration Requirements Clause in Contracts