Registration Rights. (a) The Company shall file a registration statement under the Securities Act covering the resale of all Shares of the Holder as soon as practicable following the Holder’s written request to do so, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them. (i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing. (ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them. (iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate. (iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares. (i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.
Appears in 7 contracts
Samples: Common Stock Warrant (Integrated Healthcare Holdings Inc), Warrant Agreement (Silver Point Capital L.P.), Warrant Agreement (Silver Point Capital L.P.)
Registration Rights. (a) The Company shall file a registration statement If any Pledged Subsidiary at any time or from time to time proposes to register any of its securities under the Securities Act covering of 1933, the resale Company will at each such time give notice to the Agent of all Shares such Pledged Subsidiary's intentions so to do. Upon the request of the Holder as soon as practicable following the Holder’s written request to do soAgent given 30 days after receipt of such notice, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for will cause all Pledged Stock of such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder Pledged Subsidiary to be included in the registration statement proposed to be filed, all to the extent requisite to permit the public sale or other public disposition of such underwriting shall not be reduced unless all other securities are first entirely excluded from Pledged Stock so registered by the underwritingholders thereof. The costs and expenses of all such registrations and qualifications under said Act shall be paid by the Company shall bear or such Pledged Subsidiary, except that underwriting discounts and pay all expenses incurred commissions in connection with respect of any registration, filing or qualification of the Shares with respect to the registrations Pledged Stock sold pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares shall be borne by the sellers thereof. As expeditiously as they may request in writing.
(ii) The Company shall permit, or shall cause possible after the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities effective date of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offeringstatement, the Company will have no obligation deliver in exchange for any certificates representing shares of Pledged Stock so registered pursuant to proceed with such registration, which bear any restrictive legend, new Pledged Stock certificates not bearing such legend or any similar legend. In the offering event of the Piggy-back Shares.
(i) To the fullest extent permitted by lawany such registration, the Company will hereby agrees to indemnify and hold harmless each Holder, the partners, members, officers, directors Agent and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (the Lenders as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning pledgee of the Securities Act or the Exchange Act, Pledged Stock against any Violation (as defined herein below) losses, claims, damages or liabilities to which the Agent and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action Lenders may become subject to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, damages or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a any material fact contained in any such registration statement, including and any preliminary prospectus or final prospectus contained therein filed prospectus, or in any amendments amendment or supplements supplement thereto, (ii) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, therein or necessary to make the statements therein not misleading, and will reimburse the Agent and the Lenders for any legal or (iii) other expenses reasonably incurred by the Agent and the Lenders in connection with investigating or defending any violation such loss, claim, damage or alleged violation by any other party heretoliability. The indemnifications contained in this paragraph shall include each person, of if any, who controls the Securities Act, the Exchange Act, any state securities law Agent or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawBank.
Appears in 6 contracts
Samples: Pledge Agreement (BMG North America LTD), Pledge Agreement (BMG North America LTD), Pledge Agreement (BMG North America LTD)
Registration Rights. Issuer shall, if requested by Grantee or any owner of Option Shares (acollectively with Grantee, the "Owners") at any time and from time to time within three years of the first exercise of the Option, as expeditiously as possible prepare and file up to two registration statements under the Securities Act if such registration is necessary in order to permit the sale or other disposition of any or all shares of securities that have been acquired by or are issuable to such Owners upon exercise of the Option in accordance with the intended method of sale or other disposition stated by such Owners, including a "shelf" registration statement under Rule 415 under the Securities Act or any successor provision, and Issuer shall use its best efforts to qualify such shares or other securities under any applicable state securities laws. Issuer shall use all reasonable efforts to cause each such registration statement to become effective, to obtain all consents or waivers of other parties which are required therefor and to keep such registration statement effective for such period not in excess of 180 days from the day such registration statement first becomes effective as may be reasonably necessary to effect such sale or other disposition. The Company shall obligations of Issuer hereunder to file a registration statement and to maintain its effectiveness may be suspended for one or more periods of time not exceeding 30 days in the aggregate if the Board of Directors of Issuer shall have determined that the filing of such registration statement or the maintenance of its effectiveness would require disclosure of nonpublic information that would materially and adversely affect Issuer. Any registration statement prepared and filed under the Securities Act covering the resale of all Shares of the Holder as soon as practicable following the Holder’s written request to do sothis Section 9, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and any sale covered thereby, shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an at Issuer's expense except for underwriting agreement in a customary form with the underwriter discounts or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a)commissions, if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting brokers' fees relating or apportionable thereto and the fees and disbursements of one Owners' counsel for related thereto. The Owners shall provide all information reasonably inclusion in any registration statement to be filed hereunder. If during the selling Holders as selected by them.
(i) The Company covenants and agrees with time period referred to in the Holder (and any subsequent Holders first sentence of this Warrant and/or Shares) that, in the event the Company proposes to file Section 9 Issuer effects a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Issuer Common Stock for its own account or shall receive a request for registration any other stockholders of Issuer (other than on Form S-3 from S-4 or Form S-8, or any stockholder) with respect successor form), it shall allow the Owners the right to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include participate in such registration statement registration, and such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company participation shall not be required affect the obligation of Issuer to honor any such request that is received more than sixty (60) days after effect two registration statements for the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of Owners under this Section 19(b)(ii)9; provided that, if the underwriter advises the Holder managing underwriters of such offering advise Issuer in writing that marketing factors require a limitation of in their opinion the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares Issuer Common Stock requested to be included in such registration exceeds the number which can be sold in such offering, Issuer shall include the shares requested to be included therein by the Owners pro rata with the shares intended to be included therein by Issuer. The Company shall bear and pay all expenses incurred in In connection with any registration, filing or qualification of the Shares with respect to the registrations registration pursuant to this Section for each Holder9, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto Issuer and the fees Owners shall provide each other and disbursements any underwriter of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by lawwith customary representations, the Company will indemnify warranties, covenants, indemnification and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use contribution in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawregistration.
Appears in 6 contracts
Samples: Stock Option Agreement (Oryx Energy Co), Stock Option Agreement (Oryx Energy Co), Stock Option Agreement (Kerr McGee Corp)
Registration Rights. (a) The If at any time during the Registration Period, the Company shall file with the SEC a registration statement Registration Statement, or a pre-effective amendment to a Registration Statement already filed with the SEC, relating to an offering for its own account or the account of others under the Securities 1933 Act covering the resale of all Shares any of the Holder as soon as practicable following the Holder’s written request its equity securities (other than on Form S-4 or Form S-8 or their then equivalents relating to do so, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares equity securities to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred issued solely in connection with any registrationacquisition of any entity or business or equity securities issuable in connection with stock option or other employee benefit plans), filing or qualification the Company shall send to the Investor who is entitled to registration rights under this Section 2 written notice of the Shares intended filing of such Registration Statement and, if within twenty (20) days after receipt of such notice, the Investor shall so request in writing, the Company shall include in such Registration Statement all or any part of the Registrable Securities the Investor requests to be registered, except that if, in connection with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel any underwritten public offering for the selling Holders as selected by them.
(iaccount of the Company the managing underwriter(s) The Company covenants and agrees with thereof shall impose a limitation on the Holder (and any subsequent Holders number of this Warrant and/or Shares) thatshares of Common Stock which may be included in the Registration Statement because, in the event the Company proposes such underwriter(s)' judgment, marketing or other factors dictate such limitation is necessary to file a registration statement under the Securities Act (including, without limitation, relating to an initial facilitate public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Datedistribution, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity be obligated to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of Registration Statement only a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities limited portion of the Company included therein or Registrable Securities with respect to which the Investor has requested inclusion hereunder, such portion to be determined as applicable to hereinafter provided; provided that no portion of the equity securities of any person other than which the Company and the Holders of Piggy-back Shares if the securities of any such person are included thereinis offering for its own account shall be excluded; provided, however, further that the Company shall not be required entitled to honor any such request that is received more than sixty (60) days after exclude Registrable Securities to the proper giving extent necessary to avoid breaching obligations existing prior to the date hereof to other stockholders of the Company’s notice . Subject to the foregoing, the Company shall not exclude any Registrable Securities unless the Company has first excluded all outstanding securities, the holders of which are not entitled to inclusion of such securities in such Registration Statement or are not entitled to pro rata inclusion with the Registrable Securities, and, after giving effect to the Expiration Dateimmediately preceding clause, any exclusion of Registrable Securities shall be made pro rata with holders of other securities having the right to include such securities in the Registration Statement other than holders of securities entitled to inclusion of their securities in such Registration Statement by reason of demand registration rights as of date hereof. Notwithstanding any other provision The obligations of the Company under this Section 19(b)(ii)2 may be waived by the Investor. If an offering in connection with which the Investor is entitled to registration under this Section 2 is an underwritten offering, then if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be Investor's Registrable Securities are included in such underwriting shall not be reduced Registration Statement the Investor shall, unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and otherwise agreed by the Company, are first entirely excluded from offer and sell such Registrable Securities in an underwritten offering using the underwritingsame underwriter or underwriters and, and unless subject to the number provisions of Other Sharesthis Agreement, on the one hand, same terms and Piggy-back Shares on the conditions as other hand, are cut back on a pro rata basis based on the number shares of Piggy-back Shares and Other Shares requested to be Common Stock included in such underwritten offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.
Appears in 6 contracts
Samples: Note and Warrant Purchase Agreement (Galaxy Nutritional Foods Inc), Note and Warrant Purchase Agreement (Galaxy Nutritional Foods Inc), Note and Warrant Purchase Agreement (Galaxy Nutritional Foods Inc)
Registration Rights. (a) The To the extent the Company shall file does not maintain an effective registration statement for the Warrant Shares and in the further event that the Company files a registration statement under with the Securities Act and Exchange Commission covering the resale sale of all Shares its shares of Common Stock (other than a registration statement on Form S-4 or S-8, or on another form, or in another context, in which such “piggyback” registration would be inappropriate), then, for a period of five (5) years from the commencement of sales of the Offering, the Company shall give written notice of such proposed filing to the Holder as soon as practicable following but in no event less than ten (10) days before the Holder’s written request anticipated filing date, which notice shall describe the amount and type of securities to do sobe included in such offering, the intended method(s) of distribution, and the name of the proposed managing underwriter or underwriters, if any, of the offering, and offer to the Holder in such notice the opportunity to register the sale of such number of shares of Warrant Shares as such Holder may request in writing within five (5) days following receipt of such notice (a “Piggyback Registration”). The Company shall cause such Warrant Shares to be included in such registration and shall use its commercially reasonable best efforts to have cause the registration statement declared effective by managing underwriter or underwriters of a proposed underwritten offering to permit the SEC for distribution thereof by means Warrant Shares requested to be included in a Piggyback Registration on the same terms and conditions as any similar securities of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to permit the Holder. The Holder shall (together sale or other disposition of such Warrant Shares in accordance with the Company as provided herein belowintended method(s) of distribution thereof. All Holders proposing to distribute their securities through a Piggyback Registration that involves an underwriter or underwriters shall enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwritingPiggyback Registration. Notwithstanding any other provision of this Section 19(a)Furthermore, if the underwriter advises the each Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held must provide such information as reasonably requested by the Holder Company (which information shall be limited to that which is required for disclosure under the Securities Act and the forms, rules and regulations promulgated thereunder) to be included in the registration statement timely or the Company may elect to exclude such underwriting shall not be reduced unless all other securities are first entirely excluded Holder from the underwriting. The registration statement.
b) In addition, to the extent the Company shall bear and pay all expenses incurred in connection with any registrationdoes not maintain an effective registration statement for the Warrant Shares, filing or qualification for a period of five (5) years from the commencement of sales of the Offering, the Holder shall be entitled to one (1) demand right for the registration of the Warrant Shares with respect at the Company’s expense (other than any underwriting discounts, selling commissions, share transfer taxes applicable to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filingsale of the Warrant Shares, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holder) (the “Demand Registration”). In the event of a Demand Registration, the Company shall use its commercially reasonable efforts to register the applicable Warrant Shares. All Holders as selected by them.
(i) The Company covenants and agrees of Warrant Shares proposing to distribute their securities through a Demand Registration that involves an underwriter or underwriters shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such Demand Registration. Furthermore, each Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event must provide such information as reasonably requested by the Company proposes (which information shall be limited to file a registration statement that which is required for disclosure under the Securities Act (includingand the forms, without limitation, relating rules and regulations promulgated thereunder) to an initial public offering of Company Common Stock be included in the registration statement timely or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will may elect to exclude such Holder from the registration statement.
c) Notwithstanding the foregoing, the registration rights described in this Section 5 shall be subject to limitations imposed by the Commission’s rules or comments of the Commission staff in connection with its review of the registration statement for any such resale registration. Moreover, notwithstanding the foregoing registration obligations of the Company, if the Company furnishes to the Holders requesting a Demand Registration a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its stockholders for a registration statement to either become effective on or after remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Initial Exercise Date and on Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or before (iii) render the Expiration DateCompany unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall in each case give prompt written notice of such proposed filing have the right to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer defer taking action with respect to such Holders the opportunity to include in such Demand Registration or withdraw a related registration statement such number for a period of Shares as they may request in writing.
not more than forty-five (ii45) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included thereincalendar days; provided, however, that the Company shall may not be required to honor any such request that is received invoke this right more than sixty twice in any twelve (6012) days after month period or during the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA twelve (the “Other Shares”12) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering month period prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designateTermination Date.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.
Appears in 6 contracts
Samples: Placement Agent's Purchase Warrant (Azitra, Inc.), Representative's Purchase Warrant (Amphitrite Digital Inc), Representative's Purchase Warrant (Amphitrite Digital Inc)
Registration Rights. (a) The To the extent the Company shall file does not maintain an effective registration statement for the Warrant Shares and in the further event that the Company files a registration statement under with the Securities Act and Exchange Commission covering the resale sale of all Shares its shares of Common Stock (other than a registration statement on Form S-4 or S-8, or on another form, or in another context, in which such “piggyback” registration would be inappropriate), then, for a period of five (5) years from the commencement of sales of the Offering, the Company shall give written notice of such proposed filing to the Holder as soon as practicable following but in no event less than ten (10) days before the Holder’s written request anticipated filing date, which notice shall describe the amount and type of securities to do sobe included in such offering, the intended method(s) of distribution, and the name of the proposed managing underwriter or underwriters, if any, of the offering, and offer to the Holder in such notice the opportunity to register the sale of such number of shares of Warrant Shares as such Holder may request in writing within five (5) days following receipt of such notice (a “Piggyback Registration”). The Company shall cause such Warrant Shares to be included in such registration and shall use its commercially reasonable best efforts to have cause the registration statement declared effective by managing underwriter or underwriters of a proposed underwritten offering to permit the SEC for distribution thereof by means Warrant Shares requested to be included in a Piggyback Registration on the same terms and conditions as any similar securities of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to permit the Holder. The Holder shall (together sale or other disposition of such Warrant Shares in accordance with the Company as provided herein belowintended method(s) of distribution thereof. All Holders proposing to distribute their securities through a Piggyback Registration that involves an underwriter or underwriters shall enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwritingPiggyback Registration. Notwithstanding any other provision of this Section 19(a)Furthermore, if the underwriter advises the each Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held must provide such information as reasonably requested by the Holder Company (which information shall be limited to that which is required for disclosure under the Securities Act and the forms, rules and regulations promulgated thereunder) to be included in the registration statement timely or the Company may elect to exclude such underwriting shall not be reduced unless all other securities are first entirely excluded Holder from the underwriting. The registration statement.
b) In addition, to the extent the Company shall bear and pay all expenses incurred in connection with any registrationdoes not maintain an effective registration statement for the Warrant Shares, filing or qualification for a period of five (5) years from the commencement of sales of the Offering, the Holder shall be entitled to one (1) demand right for the registration of the Warrant Shares with respect at the Company’s expense (other than any underwriting discounts, selling commissions, share transfer taxes applicable to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filingsale of the Warrant Shares, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holder) (the “Demand Registration”). In the event of a Demand Registration, the Company shall use its commercially reasonable efforts to register the applicable Warrant Shares within sixty (60) days after receiving the Demand Registration. All Holders as selected by them.
(i) The Company covenants and agrees of Warrant Shares proposing to distribute their securities through a Demand Registration that involves an underwriter or underwriters shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such Demand Registration. Furthermore, each Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event must provide such information as reasonably requested by the Company proposes (which information shall be limited to file a registration statement that which is required for disclosure under the Securities Act (includingand the forms, without limitation, relating rules and regulations promulgated thereunder) to an initial public offering of Company Common Stock be included in the registration statement timely or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will may elect to exclude such Holder from the registration statement.
c) Notwithstanding the foregoing, the registration rights described in this Section 5 shall be subject to limitations imposed by the Commission’s rules or comments of the Commission staff in connection with its review of the registration statement for any such resale registration. Moreover, notwithstanding the foregoing registration obligations of the Company, if the Company furnishes to the Holders requesting a Demand Registration a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its stockholders for a registration statement to either become effective on or after remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Initial Exercise Date and on Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or before (iii) render the Expiration DateCompany unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall in each case give prompt written notice of such proposed filing have the right to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer defer taking action with respect to such Holders the opportunity to include in such Demand Registration or withdraw a related registration statement such number for a period of Shares as they may request in writing.
not more than forty-five (ii45) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included thereincalendar days; provided, however, that the Company shall may not be required to honor any such request that is received invoke this right more than sixty twice in any twelve (6012) days after month period or during the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA twelve (the “Other Shares”12) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering month period prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designateTermination Date.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.
Appears in 5 contracts
Samples: Underwriting Agreement (Modular Medical, Inc.), Representative’s Purchase Warrant (Reviva Pharmaceuticals Holdings, Inc.), Representative’s Purchase Warrant (Gain Therapeutics, Inc.)
Registration Rights. (a) The Company shall Issuer shall, upon request by any Holder at any time and from time to time within 2 years of the first exercise of the Option, as expeditiously as is practicable, prepare and file a registration statement under the Securities Act covering Laws, if such registration is necessary in order to permit the resale sale or other disposition of any or all Shares shares of Issuer Common Stock or other securities that have been acquired by or are issuable to Holder upon exercise of the Holder as soon as practicable following Option in accordance with the Holder’s written request to do sointended method of sale or other disposition, and use its reasonable best efforts to have the including a "shelf" registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under Rule 415 under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Datesuccessor provision. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company Issuer shall use its reasonable best efforts to register qualify such shares or qualify other securities, or the Shares offering thereof, for offer or sale under the any applicable state securities laws, to cause any such registration statement to become effective, to obtain all consents or Blue Sky laws waivers of other parties that are required for such states which the Holders of registration statement and to keep any such Shares shall designate.
(iv) If the Company decides registration statement updated and effective for a period not to proceed with exceed 270 days from the piggy-back offeringday such registration statement becomes effective as may be reasonably necessary to effect such sale or other disposition. The first registration statement prepared under this SECTION 9 and any sale covered thereby, the Company will have no obligation to proceed with the offering shall be at Issuer's expense except for underwriting discounts or commissions, brokers fees and fees and disbursements of the Piggy-back Shares.
(i) To the fullest extent permitted by lawHolder's counsel related thereto. Any subsequent registration, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter other than a Piggyback Registration (as defined below) shall be at Holder's expense. Holder shall provide all information reasonably requested by Issuer for inclusion in any registration statement to be prepared hereunder. If during the time periods referred to in the Securities Act) for such Holder and each personfirst sentence of this SECTION 9, if any, who controls such Holder or underwriter within Issuer proposes to register any shares of the meaning of Issuer's Common Stock under the Securities Act for its own account or the Exchange Act, against for any Violation other shareholders of Issuer (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person other than on Form S-4 or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liabilityForm S-8, or action as any successor form), it shall first allow Holder the right to participate in such expenses are incurred; providedoffering (a "Piggyback Registration"), however, that the indemnity agreement contained in this Section 19(c)(i) and such participation shall not apply affect the obligation of Issuer to amounts paid effect registration statements for Holder under this SECTION 9; provided that, if the managing underwriters of such offering advise Issuer in settlement writing that in their opinion the number of any such loss, claim, damage, liability, or action if such settlement is effected without the consent shares of the Company (which consent shall not Issuer securities requested to be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained included in such registration statementstatement exceeds the number that can be sold in such offering, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) Issuer shall include the omission or alleged omission to state therein a material fact required shares requested to be stated thereinincluded therein by Holder only to the maximum extent such managing underwriters determine to be feasible. In connection with any registration statement pursuant to this SECTION 9, or necessary to make the statements therein not misleading, or (iii) Issuer and Holder shall provide each other and any violation or alleged violation by any other party hereto, underwriter of the Securities Actoffering with customary representations, the Exchange Actwarranties, any state securities law or any rule or regulation promulgated under the Securities Actcovenants, the Exchange Act or any state securities lawindemnification and contribution in connection therewith.
Appears in 5 contracts
Samples: Stock Option Agreement (First Bancorp /Nc/), Stock Option Agreement (First Savings Bancorp Inc), Stock Option Agreement (Century Bancorp Inc /Nc)
Registration Rights. (a) The If at any time the Company shall determine to prepare and file with the Securities and Exchange Commission (the "Commission") a registration statement relating to an offering for its own account or the account of others under the Securities Act covering of any of its equity securities, other than on Form S-4 or Form S-8 (each as promulgated under the resale Securities Act) or its then equivalents relating to equity securities to be issued solely in connection with any acquisition of any entity or business or equity securities issuable in connection with stock option or other employee benefit plans (a "Registration Statement"), the Company shall send to the Holder written notice of such determination and, if within 30 days after receipt of such notice, Holder shall so request in writing (which request shall specify the Shares and Warrant Shares intended to be disposed of by the Holder), the Company will cause the registration under the Securities Act of all Shares and Warrant Shares which the Company has been so requested to register by the Holder, to the extent requisite to permit the disposition of the Holder as soon as practicable following Shares and Warrant Shares so to be registered, provided that if at any time after giving written notice of its intention to register any securities and prior to the Holder’s written request to do so, and use its reasonable best efforts to have effective date of the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by filed in connection with such registration, the Company and shall determine for any reason not to register or to delay registration of such securities, the Company may, at its election, give written notice of such determination to the Holder and, thereupon, (i) in the case of a determination not to register, shall be reasonably acceptable relieved of its obligation to register any Shares and Warrant Shares in connection with such registration, and (ii) in the Holder. The Holder case of a determination to delay registering, shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding be permitted to delay registering any other provision of Shares and Warrant Shares being registered pursuant to this Section 19(a), if 7 for the underwriter advises same period as the Holder delay in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in registering such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwritingsecurities. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement all or any part of such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering and Warrant Shares such Holder requests to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included thereinbe registered; provided, however, that the Company shall not be required to honor register any such request Shares and Warrant Shares pursuant to this Section 7 that are eligible for sale pursuant to Rule 144(k) of the Securities Act. The Company acknowledges and agrees that if it shall file a registration statement, the Shares and Warrant Shares must be included thereon and the Company shall not enter into and contract or agreement to the contrary.
(b) On or prior to the date that is received more than sixty (60) days after from the proper giving date of this Agreement, upon written request of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwrittenHolder, the number of Shares held by Company shall prepare and file with the Holder to be included in such underwriting shall not be reduced unless Commission a "resale" Registration Statement covering all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offeringShares. The Company shall use its reasonable best efforts to register or qualify cause the Shares for offer or sale Registration Statement to be declared effective under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or as promptly as possible after the Exchange Actfiling thereof, against any Violation (as defined herein below) and the Company will pay to each keep such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject Registration Statement continuously effective under the Securities Act, Act until such date as is the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities earlier of (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (iix) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, date when all Registrable Securities covered by such Registration Statement have been sold or (iiiy) the date on which the Registrable Securities may be sold without any violation or alleged violation restriction pursuant to Rule 144 as determined by any other party heretothe counsel to the Company pursuant to a written opinion letter, of addressed to the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawCompany's transfer agent to such effect.
Appears in 5 contracts
Samples: Securities Exchange Agreement (Ramp Corp), Securities Exchange Agreement (Ramp Corp), Securities Exchange Agreement (Ramp Corp)
Registration Rights. (a) a. The Company shall agrees that, within forty-five (45) calendar days after the Transaction Closing (the “Filing Deadline”), the Company will file with the Commission (at the Company’s sole cost and expense) a registration statement under registering the Securities Act resale or transfer of the Shares (the “Initial Registration Statement”), and the Company shall use its commercially reasonable efforts to have the Initial Registration Statement declared effective as soon as practicable after the filing thereof, but no later than the earlier of, (i) if the Commission notifies the Company that it will “review” the Initial Registration Statement, the ninetieth calendar day following the earlier of (A) the Filing Deadline and (B) the initial filing date of the Initial Registration Statement, and (ii) the tenth business day after the date the Company is notified (orally or in writing, whichever is earlier) by the Commission that the Initial Registration Statement will not be “reviewed” or will not be subject to further review. If not included in the Initial Registration Statement, in the event that any Additional Shares issued to Subscriber pursuant to the terms of this Subscription Agreement are not permitted by the Commission to be registered on the Initial Registration Statement, the Company agrees that, within thirty (30) business days following the Additional Closing Date (the “Additional Filing Deadline” and, together with the initial Filing Deadline, each, a “Filing Deadline”), the Company will submit to or file with the Commission a registration statement for a shelf registration on Form S-1 or Form S-3 (if the Company is then eligible to use a Form S-3 shelf registration) (an “Additional Registration Statement” and, together with the Initial Registration Statement, each, a “Registration Statement”), in each case, covering the resale of all the Additional Shares of the Holder as soon as practicable following the Holder’s written request to do so, and use its reasonable best efforts to have the registration statement declared effective acquired by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations Subscriber pursuant to this Section Subscription Agreement which are eligible for each Holderregistration (determined as of two business days prior to such submission or filing). The Company’s obligations to include the Shares or Additional Shares, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) thatapplicable, in a Registration Statement are contingent upon the event Subscriber furnishing in writing to the Company proposes to file a registration statement under such information regarding the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permitSubscriber, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein held by the Subscriber and the intended method of disposition of the Shares or Additional Shares, as applicable to securities of any person other than as shall be reasonably requested in writing by the Company to effect the registration of the Shares or the Additional Shares, and shall execute such documents in connection with such registration as the Holders Company may reasonably request that are customary of Piggy-back Shares if the securities of any such person are included thereina selling stockholder in similar situations; provided, however, that the Company Subscriber shall not in connection with the foregoing be required to honor execute any lock-up or similar agreement or otherwise be subject to any contractual restriction on the ability to transfer the Shares or Additional Shares, as applicable. With respect to the information to be provided by the Subscriber pursuant to this Section 7, the Company shall request such request that is received more than sixty information prior to the anticipated initial filing date of a Registration Statement. The Company will provide a draft of a Registration Statement to the Subscriber for review at least two (602) business days after the proper giving in advance of the Company’s notice or after the Expiration Dateits anticipated initial filing date. Notwithstanding any other provision of this Section 19(b)(ii)the foregoing, if the underwriter advises Commission prevents the Holder Company from including in writing that marketing factors require a limitation Registration Statement any or all of the Shares or Additional Shares due to limitations on the use of Rule 415 of the Securities Act for the resale or transfer of the Shares by the applicable stockholders or otherwise, the Registration Statement shall register for resale or transfer such number of shares Common Shares which is equal to be underwrittenthe maximum number of Shares (and Additional Shares, as applicable) as is permitted by the Commission. In such event, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities(and Additional Shares, other than securities as applicable) to be registered pursuant to the registration rights granted for each selling stockholder named in the 2008 SPA (the “Other Shares”) and securities to Registration Statement shall be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwritingreduced pro rata among all such selling stockholders, and unless the number of Other as promptly as practicable after being permitted to register additional Shares (and Additional Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitationas applicable) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject Rule 415 under the Securities Act, the Exchange Act or other federal or state lawCompany shall file a new Registration Statement to register such Shares not included in a filed Registration Statement and cause such Registration Statement to become effective as promptly as practicable consistent with the terms of this Section 7. If the Commission requests that the Subscriber be identified as a statutory underwriter in the Registration Statement, insofar as such losses, claims, damagesthe Subscriber will have an opportunity to withdraw from the Registration Statement. The Company will use its commercially reasonable efforts to maintain the continuous effectiveness of any Registration Statement, or liabilities another shelf registration statement that includes the Shares (or actions in respect thereofand Additional Shares, as applicable) arise out to be sold pursuant to this Subscription Agreement, until the earliest of or are based upon any of the following statements, omissions or violations: (i) the date on which all such Shares, and any untrue statement or alleged untrue statement of a material fact contained in such registration statementAdditional Shares, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements theretoissued to Subscriber have actually been sold, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make date which is three years after the statements therein not misleading, or relevant Registration Statement filed hereunder is declared effective and (iii) any violation the date on which the Shares (and Additional Shares, as applicable) may be resold without volume or alleged violation by any other party hereto, manner of the Securities Act, the Exchange Act, any state securities law or any rule or regulation sale limitations pursuant to Rule 144 promulgated under the Securities Act. For purposes of clarification, any failure by the Company to file any Registration Statement by a Filing Deadline or to effect such Registration Statement by date of effectiveness shall not otherwise relieve the Company of its obligations to file or cause the effectiveness of any Registration Statement set forth in this Section 7. For purposes of this Section 7, “Shares” or “Additional Shares” shall mean, as of any date of determination, the Exchange Act Common Shares acquired by the Subscriber pursuant to this Subscription Agreement and any other equity security issued or issuable with respect to such Shares by way of stock split, dividend, distribution, recapitalization, merger, exchange, replacement or similar event, and “Subscriber” shall include any state securities lawaffiliate of the Subscriber to which the rights under this Section 7 have been duly assigned.
Appears in 5 contracts
Samples: Subscription Agreement (Mobix Labs, Inc), Subscription Agreement (Chavant Capital Acquisition Corp.), Subscription Agreement (Chavant Capital Acquisition Corp.)
Registration Rights. With respect to the Registration Rights, the -------------------- parties agree as follows:
(a) Subject to Paragraph 2(b), the Company will (i) promptly give to the Holder written notice of any registration relating to an Underwritten Public Offering, and (ii) include in such registration (and related qualification under blue sky laws or other compliance) such of the Holder's Registrable Securities as are specified in the Holder's written request or requests, mailed in accordance with the terms of this Agreement within 30 days after the date of such written notice from the Company.
(b) The Company shall file a registration statement under the Securities Act covering the resale of all Shares right of the Holder as soon as practicable following to registration pursuant to the Registration Rights shall be conditioned upon the Holder’s written request to do so's participation in such underwriting, and use its reasonable best efforts to have the registration statement declared effective by inclusion of the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by Registrable Securities in the Company and underwriting shall be reasonably acceptable limited to the Holderextent provided herein. The Holder shall (together with the Company as provided herein belowCompany) enter into an underwriting agreement in a customary form with the managing underwriter or underwriters selected for such underwritingthe Underwritten Public Offering by the Company. Notwithstanding any other provision of this Section 19(a)Agreement, if the managing underwriter advises the Holder in writing determines that marketing factors require a limitation of the number of Shares the Registrable Securities to be underwritten, the managing underwriter may limit some or all of the Registrable Securities that may be included in the registration and the Underwritten Public Offering as follows: the number of Shares held the Registrable Securities that may be included in the registration and the Underwritten Public Offering by the Holder to shall be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from determined by multiplying the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification number of the Shares with respect to shares of the registrations pursuant to this Section for each Holder, including (without limitation) Registrable Securities of all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements selling shareholders of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity managing underwriter is willing to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause and the managing underwriter of Underwritten Public Offering times a proposed offering to permitfraction, the Holders from whom such written requests have been received to include such number numerator of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that which is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares Registrable Securities requested to be included in such offering. The Company shall bear registration and pay all expenses incurred in connection with any registrationthe Underwritten Public Offering by the Holder, filing or qualification and the denominator of which is the total number of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) Registrable Securities which all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements selling shareholders of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares have requested to be included in such piggy-back offering prior to registration and the consummation Underwritten Public Offering. To facilitate the allocation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed shares in accordance with the piggy-back offeringabove provisions, the Company will have no obligation may round the number of shares allocable to proceed with any such person to the offering nearest 100 shares. If the Holder disapproves of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement terms of any such lossunderwriting, claimit may elect to withdraw therefrom by written notice to the Company and the managing underwriter, damage, liability, or action if such settlement is effected without delivered not less than seven days before the consent effective date of the Company (which consent Underwritten Public Offering. Any of the Registrable Securities excluded or withdrawn from the Underwritten Public Offering shall be withdrawn from such registration, and shall not be unreasonably withheld, delayed or conditioned), nor shall transferred in a public distribution prior to 60 days after the Company be liable in any such case for any such loss, claim, damage, liabilityeffective date of the Registration Statement relating thereto, or action to such other shorter period of time as the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto underwriters may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawrequire.
Appears in 4 contracts
Samples: Stock Purchase Agreement (Spiderboy International Inc), Registration Rights Agreement (Equitable Assets Inc), Stock Purchase Agreement (Spiderboy International Inc)
Registration Rights. (a) The Company shall file a registration statement under In the Securities Act covering event that Acquiror exercises the resale of all Shares of the Holder Option, as soon promptly as practicable following the Holder’s written request closing date for the exchange offer referred to do soin Section 1.2 above (but not more than 60 days following the Closing Date), Acquiror shall (i) file a shelf registration statement covering all Acquiror Shares for the purposes of resale of Acquiror Shares by each Stockholder and (ii) use its reasonable best efforts to have the cause such shelf registration statement declared to become and remain effective by for the SEC for distribution thereof by means resale of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of all Acquiror Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations issued pursuant to this Agreement; provided, however, that Acquiror shall be required to include in such registration statement only those Acquiror Shares as to which the Stockholder holding such Acquiror Shares agrees to sell such shares in compliance with the requirements of paragraphs (c) and (d) of Rule 145 that would have been applicable to such sale if such Acquiror Shares had been registered under the Proxy Registration Statement (or Exchange Registration Statement, as the case may be) rather than such shelf registration statement.
(b) Registrations effected under this Section for each Holdershall be effected at Acquiror's expense, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements expenses of one counsel for to the selling Holders as selected by them.
(i) The Company covenants holders of Acquiror Shares, but excluding underwriting discounts and agrees commissions to brokers or dealers. In connection with the Holder (each registration under this Section, Acquiror shall indemnify and any subsequent Holders hold each holder of this Warrant and/or Shares) that, in the event the Company proposes Acquiror Shares whose shares are registered pursuant to file a such registration statement under the Securities Act (a "Holder of Acquiror Shares"), its underwriters and each of their respective affiliates harmless against any and all losses, claims, damages, liabilities and expenses (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date investigation expenses and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant and accountants), joint or several, to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as which such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use Acquiror Shares, its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder underwriters and each personof their respective affiliates may become subject, if any, who controls such Holder or underwriter within the meaning of under the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state lawotherwise, insofar as such losses, claims, damages, liabilities or liabilities expenses (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any an untrue statement or alleged untrue statement of a material fact contained in such registration statement, statement (including any preliminary prospectus therein), of any amendment or final prospectus contained therein or any amendments or supplements supplement thereto, (ii) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, therein or necessary to make the statements therein not misleading, other than such losses, claims, damages, liabilities or expenses (iiior actions in respect thereof) any violation which arise out of are based upon an untrue statement or alleged violation untrue statement of a material fact contained in written information furnished by a Holder of Acquiror Shares to Acquiror expressly for use in such registration statement; provided, however, that the foregoing indemnity shall not inure to the benefit of any other party heretoHolder of Acquiror Shares, its underwriters or respective affiliates, if a copy of the prospectus was not sent or given by or on behalf of such person to the person purchasing the Shares, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage or liability.
(c) In connection with any registration statement pursuant to this Section, each Holder of Acquiror Shares agrees to furnish Acquiror with such information concerning itself and the proposed sale or distribution as shall reasonably be required in order to ensure compliance with the requirements of the Securities Act. Each Holder of Acquiror Shares shall indemnify and hold Acquiror, the Exchange Actits underwriters and each of their respective affiliates harmless against any and all losses, any state securities law claims, damages, liabilities and expenses (including without limitation investigation expenses and fees and disbursements of counsel and accountants), joint or any rule or regulation promulgated several, to which Acquiror, its underwriters and each of their respective affiliates may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities or expenses (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in written information furnished by any state securities lawHolder of Acquiror Shares to Acquiror expressly for use in such registration statement. In no event shall the liability of any Holder of Acquiror Shares or any affiliate thereof under this Section be greater in amount than the dollar amount of the proceeds received by such Holder of Acquiror Shares upon the sale of the Acquiror Shares giving rise to such indemnification obligation.
(d) Upon the issuance of Acquiror Shares hereunder, Acquiror will use its reasonable best efforts promptly to list such Acquiror Shares with the New York Stock Exchange or on such national or other exchange on which Acquiror Shares are at the time principally listed.
Appears in 4 contracts
Samples: Principal Stockholder Agreement (Loral Space & Communications LTD), Principal Stockholder Agreement (British Aerospace Holdings Inc), Principal Stockholder Agreement (Loral Space & Communications LTD)
Registration Rights. For a period of one year following the final exercise of rights to purchase Warrant Stock under this Warrant, if the Company shall determine to register any of its common stock either for its own account or the account of a security holder or holders, other than a registration relating solely to (i) employee benefit plans, or (ii) registration on any registration form that does not permit secondary sales, the Company will: (a) The promptly give written notice of the proposed registration to the holder of this Warrant or any Warrant Stock issued or issuable upon the exercise of this Warrant; and (b) with respect to any Warrant Stock that has not been held for a two-year period, include in such registration (and any related qualification or other compliance filing under applicable blue sky laws), and in any underwriting involved therein, all or any portion of the Warrant Stock then issued or issuable upon exercise of this Warrant as specified in a written request made by such holders within thirty (30) days after receipt of the written notice from the Company described in clause (a) above. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall file a registration statement under so advise the Securities Act covering the resale of all Shares holders as part of the Holder as soon as practicable following written notice described in clause (a) above. In such event, the Holder’s written request holders' rights to do so, registration pursuant to this Section 6 shall be conditioned upon participation in the underwriting and use its reasonable best efforts the inclusion of stock in the underwriting to have the registration statement declared effective by the SEC for distribution thereof by means of an underwritingextent provided herein. The underwriter will be selected by Holders and the Company (and any other security holders proposing to distribute their securities through the underwriting) shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the representatives of the underwriter or underwriters selected for such underwritingunderwriting by the Company. Notwithstanding any other provision provisions of this Section 19(a)6, if the representatives of the underwriter advises the Holder or underwriters determine in writing good faith that marketing factors require make it advisable to impose a limitation of on the number of Shares secondary shares to be underwrittenincluded in the registration, the number of Shares held by the Holder to such secondary shares, if any, that may be included in the registration and underwriting on behalf of such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filingholders, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes other security holders proposing to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to distribute their securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in through such underwriting shall not be reduced unless all other securitiesallocated in proportion, other than securities to be registered pursuant as nearly as practicable, to the registration rights granted in the 2008 SPA (the “Other Shares”) and respective amounts of securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares that they had requested to be included in such offeringregistration at the time of filing the registration statement. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification If such holders disapprove of the Shares with respect terms of any such underwriting, they may elect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected withdraw therefrom by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking written notice to the Company that such Holder intends to exercise and the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering representatives of the Piggy-back Sharesunderwriter or underwriters.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.
Appears in 4 contracts
Samples: Common Stock Purchase Warrant (Pacific Aerospace & Electronics Inc), Common Stock Purchase Warrant (Pacific Aerospace & Electronics Inc), Common Stock Purchase Warrant (Pacific Aerospace & Electronics Inc)
Registration Rights. (a) The At any time after the date hereof, in the event that the Company shall file determine to proceed with the actual preparation and filing of a registration statement under the Securities 1933 Act covering in connection with the resale proposed initial public offer and sale of all any of its Shares by it or by any of its security holders (other than a registration statement on Form X-0, X-0 or other successor or comparable forms), the Company, on one occasion only, will give written notice of its determination (the “Piggyback Notice”) to you at least forty-five (45) days prior to filing such registration statement. Upon your written request within thirty (30) days after the giving of the Holder as soon as practicable following the Holder’s written request to do soPiggyback Notice, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for will cause such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder Securities to be included in such underwriting shall not be reduced unless registration statement, all to the extent required to permit the sale or other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification disposition by you of the Shares with respect Securities to be so registered; provided, that nothing herein shall prevent the registrations Company from, at any time, abandoning or delaying any such Company initiated registration. If any registration pursuant to this Section 4 shall be underwritten in whole or in part, the Company may require that the Securities requested for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of inclusion pursuant to this Warrant and/or Shares) that, Section 4 be included in the underwriting on the same terms and conditions as the securities otherwise being sold through the underwriter(s). In the event that in the Company proposes to file a registration statement under good faith judgment of the managing underwriter of such public offering the inclusion of all of the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive originally covered by a request for registration on Form S-3 from any stockholder) with respect pursuant to any class this Section 4 would materially and adversely affect the successful marketing of security which becomes or which the securities offered by the Company believes will become effective on or after through a managing underwriter, the Initial Exercise Date and on or before number of Securities otherwise to be included in the Expiration Dateunderwritten public offering may be reduced as required by the managing underwriter, then the Company shall in each case give prompt written notice of such proposed filing securities so included to be apportioned pro rata among the selling security holders according to the Holder (and any subsequent Holders total amount of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, securities entitled to be included therein owned by each selling security holder or in such other proportions as shall mutually be agreed to by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writingselling security holders.
(iib) The Company shall permitAll fees, or shall cause the managing underwriter costs and expenses of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable incidental to the Holders as the terms and conditions applicable to securities registration of the Company included therein or as applicable to securities of any person other than Securities, shall be borne by the Company and the Holders of Piggy-back Shares if the securities of any such person are included thereinCompany; provided, however, that the Company you shall not be required to honor any such request that is received more than sixty (60) days after the proper giving bear your share of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each persondiscount, if any, who controls such Holder and commissions and transfer taxes, and any professional fees or underwriter within costs of accounting, financial or legal advisors engaged by you.
(c) You agree to execute any lock-up agreement signed by the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them Company’s executive officers in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.
Appears in 4 contracts
Samples: Debt Conversion Agreement (Phoenix International Ventures, Inc.), Debt Conversion Agreement (Phoenix International Ventures, Inc.), Debt Conversion Agreement (Phoenix International Ventures, Inc.)
Registration Rights. If, during any period when Buyer holds shares of the Series A Preferred Stock or common stock of the Company issued on conversion thereof (a) The the "Conversion Shares"), the Company shall file files a registration statement under the Securities Act covering the resale of all Shares of the Holder as soon as practicable following the Holder’s written request to do so, and use its reasonable best efforts to have the registration statement declared effective by the SEC register for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Dateits common stock, then the Company shall in each case give prompt at least 90 days' advance written notice to Buyer of its intent to file such registration statement. If so requested by Buyer within 30 days of the giving of such proposed filing written notice, to the Holder (extent then permissible under federal and any subsequent Holders applicable state securities laws, and the rules and regulations of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date andSecurities and Exchange Commission thereunder, by such notice, the Company shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no for Buyer's account all but not less favorable to the Holders as the terms and conditions applicable to securities than all of the Company included therein or as applicable to securities shares of the Conversion Shares then held by Buyer, except where the inclusion of any person other than the Company and the Holders or all of Piggy-back Buyer's Conversion Shares if the securities of any such person are included therein; provided, however, that the Company shall is not be required to honor any such request that is received more than sixty (60) days after the proper giving of permitted by the Company’s notice or after the Expiration Date's underwriter(s) based on bona fide market considerations. Notwithstanding any other provision The expense of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered except for the account expense of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the underwriters' or other hand, are cut back sales compensation which will be borne by Buyer on a pro rata basis based on in proportion to the number of Piggy-back shares transferred for Buyer's account as a portion of the total number of shares sold pursuant to the registration statement) will be borne by the Company. At the time of any registration pursuant to this Section 6, the Company and Buyer shall enter into any underwriting or other formal agreements containing such terms and provisions with respect to the marketing of such securities, indemnification and other related matters as may be reasonably required by the Company's underwriter(s) in any such registration. As a condition of the inclusion of the Conversion Shares and Other Shares in any such registration, Buyer agrees to furnish to the Company such information concerning Buyer as may be requested to be included in such offering. The by the Company shall bear and pay all expenses incurred as necessary in connection with any registration, filing the registration or qualification of the Conversion Shares with respect under federal and state securities laws. Prior to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees effective date of any such registration statement relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offeringConversion Shares, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless Buyer shall each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants enter into an agreement providing for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, reciprocal indemnification against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) and expenses resulting from any untrue statement or alleged untrue statement of a material fact contained in such a prospectus or related registration statement, including notification or the like or from any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a untrue statement of material fact required to be stated therein, therein or necessary to make the statements therein not misleading, based upon the information provided by it or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawon its behalf for use therein.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Regent Communications Inc), Stock Purchase Agreement (Regent Communications Inc), Stock Purchase Agreement (Regent Communications Inc)
Registration Rights. (a) The For purposes herein, “Registrable Securities” means the Shares acquired by the Subscriber hereunder. If at any time while the Subscriber remains the holder of any Registrable Securities the Company shall proposes to file a any registration statement under the Securities Act covering with respect to the resale of all Shares Common Stock (a “Registration Statement”) for its own account or for shareholders of the Holder Company for their account (or by the Company and by shareholders of the Company), other than a Registration Statement (i) filed in connection with any employee stock option or other benefit plan, (ii) for a dividend reinvestment plan or (iii) in connection with a merger or acquisition, then the Company shall (x) give written notice of such proposed filing to Subscriber as soon as practicable following but in no event less than ten (10) days before the Holder’s written request anticipated filing date of the Registration Statement, which notice shall describe the amount and type of securities to do sobe included in such Registration Statement, the intended method(s) of distribution, and use its reasonable best efforts the name of the proposed managing underwriter or underwriters, if any, of the offering, and (y) offer to have Subscriber in such notice the registration statement declared effective by opportunity to register the SEC for distribution thereof by means sale of an underwritingsuch number of Registrable Securities as Subscriber may request in writing within five (5) days following receipt of such notice (a “Piggyback Registration”). The Company shall cause such Registrable Securities to be included in such registration and shall cause the managing underwriter will or underwriters of a proposed underwritten offering to permit the Registrable Securities requested to be selected by included in a Piggyback Registration on the same terms and conditions as any similar securities of the Company and shall be reasonably acceptable to permit the Holder. The Holder shall (together sale or other disposition of such Registrable Securities in accordance with the Company as provided herein belowintended method(s) of distribution thereof. If Subscriber proposes to distribute its Registrable Securities through a Piggyback Registration that involves an underwriter or underwriters, then it shall enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(aPiggyback Registration, and the Subscriber also agrees to execute and deliver a customary lock-up agreement if so requested by the Company and/or the underwriter(s), if pursuant to which the underwriter advises the Holder in writing that marketing factors require a limitation Subscriber agrees to customary restrictions on resale of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities for a period of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them180 days.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.
Appears in 3 contracts
Samples: Product Services Agreement (Jupiter Neurosciences, Inc.), Regulatory Services Agreement (Jupiter Neurosciences, Inc.), Cro Services Agreement (Jupiter Neurosciences, Inc.)
Registration Rights. (a) The Company shall file a registration statement under the Securities Act covering the resale of all Shares Each of the Holder as soon as practicable following Stockholders shall be entitled to the Holder’s written request to do sobenefits of, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to bound by the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwrittenobligations of, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) Registration Rights Agreement with respect to any class of security which becomes or which Registrable Securities held by such Stockholder as if the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing Stockholder were a party to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included thereinRegistration Rights Agreement; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement request for a Required Registration (as such term is defined in the Registration Rights Agreement) pursuant to Section 2.1(a) of the Registration Rights Agreement made on or alleged untrue statement prior to the third anniversary of a material fact contained in such registration statement, including any preliminary prospectus the date of this Agreement shall only be made by or final prospectus contained therein or any amendments or supplements theretowith the consent of both of the Lead Stockholders, (ii) any request for a Required Registration pursuant to Section 2.1(a) of the omission Registration Rights Agreement made during the period following the third anniversary of the date of this Agreement through the fifth anniversary of the date of this Agreement shall only be made by the Apollo Stockholder, the Xxx Stockholder or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or Beacon Stockholder and (iii) any violation or alleged violation by any other party hereto, request for a Shelf (as such term is defined in the Registration Rights Agreement) pursuant to Section 2.1(a) of the Registration Rights Agreement made on or prior to the fifth anniversary of the date of this Agreement shall only be made by or with the consent of both of the Lead Stockholders. Notwithstanding the foregoing, each of the Stockholders shall be entitled to exercise its rights to include its Registrable Securities Actin a registration effected by the Company pursuant to Section 2.1(b) of the Registration Rights Agreement if such registration is a Required Registration made in accordance with the immediately preceding sentence or if either Lead Stockholder is including Registrable Securities in such registration. Each of the Lead Stockholders agrees for the benefit of the other Lead Stockholder that it will not, without the Exchange Actapproval of the other Lead Stockholder, any state securities law include its Registrable Securities in a registration effected by the Company pursuant to Section 2.1(b) of the Registration Rights Agreement during the three year period following the date of this Agreement.
(b) Notwithstanding anything else in this Agreement or any rule in the Registration Rights Agreement to the contrary, in the event that the Permitted Beacon Voting Trust Transfer occurs, none of the shares of Preferred Stock or regulation promulgated under Common Stock that are received by the Securities Actbeneficiaries of the Beacon Voting Trust in connection therewith or are issued or issuable upon conversion of such shares or shares received upon such conversion shall be Registrable Securities, other than those shares that are held by the Exchange Act Beacon Stockholder or any state securities lawby a Beacon Affiliate and remain subject to the transfer, conversion and other restrictions of this Agreement. The Beacon Stockholder, in its capacities as the trustee and initial beneficiary of the First Beacon Voting Trust and the Second Beacon Voting Trust, hereby consents and agrees to be bound by the provisions of this Section 5.1(b) on behalf of itself and all future beneficiaries of the Beacon Voting Trust and acknowledges and agrees that it has the sole responsibility to notify all such beneficiaries or transferees of Shares owned by the Beacon Voting Trust of the terms of this Section 5.1(b) and the fact that they are bound thereby.
Appears in 3 contracts
Samples: Stockholders' Agreement (Chase Equity Associates L P), Stockholders' Agreement (Guayacan Private Equity Fund Lp), Stockholders' Agreement (Beacon Capital Partners Inc)
Registration Rights. (ai) The Company shall Promptly, and in any event within 120 days of the date hereof, Emex agrees to file a shelf registration statement (the "Registration Statement") for an offering to be made on a continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended ("Securities Act"), covering the resale of all Pledged Shares of (which term, as used herein, shall include any Released Shares as defined in Section 1(h)(ii) below) and the Holder as soon as practicable Universal Retained Shares, to become effective (the "Effective Date") under the Securities Act on the day next following the Holder’s written request to do so, and use its reasonable best efforts to have the registration statement date such Registration Statement is declared effective by the SEC for distribution thereof by means of an underwritingUnited States Securities Exchange Commission (the "Commission"), or at the earliest possible time thereafter. The underwriter will be selected by the Company and foregoing Registration Statement shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement on Form S-3 under the Securities Act or another appropriate form permitting registration of such Pledged Shares and the Universal Retained Shares for resale by the pledgees or holders thereof, as appropriate, in the manner or manners reasonably designated by them (including, without limitation, relating to an initial public offering of Company Common Stock one or shall receive a request for registration on Form S-3 from any stockholder) more underwritten offerings, within the time periods and otherwise in accordance with respect to any class of security which becomes or which the Company believes provisions hereof). Concurrently herewith, the appropriate parties will become effective on or after execute the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares Registration Rights Agreement attached hereto as they may request in writing.Exhibit E.
(ii) The Company Emex shall permitpay any and all expenses arising from or incident to its performance of, or shall cause compliance with, its obligation to file the managing underwriter of a proposed offering to permitRegistration Statement, the Holders from whom such written requests have been received to include such number of Shares including, without limitation, (the “Piggy-back Shares”A) in the proposed offering on terms Commission and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii)stock exchange, if the any, registration and filing fees, (B) all fees and expenses incurred in complying with securities or "blue sky" laws (including reasonable fees, charges and disbursements of counsel to any underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification "blue sky" qualifications of the Pledged Shares and the Universal Retained Shares as may be set forth in any underwriting agreement), (C) all printing messenger and delivery expenses, (D) the fees, charges and disbursements of counsel to Emex and of its independent public accountants and any other accounting fees, charges and expenses incurred by Emex (including, without limitation, any expenses arising from any "cold comfort" letters or any special audits incident to or required by any registration or qualification) and any charges and expenses incurred by Emex, (E) any liability insurance or other premiums for insurance, if any, obtained by Emex in connection with respect any registration pursuant to the registrations pursuant to terms of this Section for each HolderAgreement, including (without limitation) all registration, filingregardless of whether such Registration Statement is declared effective, and qualification (F) in an amount up to and including $5,000, the fees, printers and accounting fees relating or apportionable thereto and the fees charges and disbursements of one counsel for on behalf of each of (x) the selling Holders selected by them.
Universal Parties and (iiiy) The Company shall be obligated the Thorn Tree Parties (provided, that, their Pledged Shares, Released Shares or Retained Shares are being sold pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designateRegistration Statement).
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.
Appears in 3 contracts
Samples: Settlement Agreement (Emex Corp), Settlement Agreement (Thorn Tree Resources L L C), Settlement Agreement (Eweson Dorothy D)
Registration Rights. (a) The To the extent the Company shall file does not maintain an effective registration statement for the Warrant Shares and in the further event that the Company files a registration statement under with the Securities Act and Exchange Commission covering the resale sale of all its shares of Ordinary Shares (other than a registration statement on Form S-4 or S-8, or on another form, or in another context, in which such “piggyback” registration would be inappropriate), then, for a period of seven (7) years from the commencement of sales of the Offering, the Company shall give written notice of such proposed filing to the Holder as soon as practicable following but in no event less than ten (10) Business days before the Holder’s written request anticipated filing date, which notice shall describe the amount and type of securities to do sobe included in such offering, the intended method(s) of distribution, and the name of the proposed managing underwriter or underwriters, if any, of the offering, and offer to the Holder in such notice the opportunity to register the sale of such number of shares of Warrant Shares as such Holder may request in writing within five (5) days following receipt of such notice (a “Piggyback Registration”). The Company shall cause such Warrant Shares to be included in such registration and shall use its commercially reasonable best efforts to have cause the registration statement declared effective by managing underwriter or underwriters of a proposed underwritten offering to permit the SEC for distribution thereof by means Warrant Shares requested to be included in a Piggyback Registration on the same terms and conditions as any similar securities of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to permit the Holder. The Holder shall (together sale or other disposition of such Warrant Shares in accordance with the Company as provided herein belowintended method(s) of distribution thereof. All Holders proposing to distribute their securities through a Piggyback Registration that involves an underwriter or underwriters shall enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwritingPiggyback Registration. Notwithstanding any other provision of this Section 19(a)Furthermore, if the underwriter advises the each Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held must provide such information as reasonably requested by the Holder Company (which information shall be limited to that which is required for disclosure under the Securities Act and the forms, rules and regulations promulgated thereunder) to be included in the registration statement timely or the Company may elect to exclude such underwriting shall not be reduced unless all other securities are first entirely excluded Holder from the underwriting. The registration statement.
b) In addition, to the extent the Company shall bear and pay all expenses incurred in connection with any registrationdoes not maintain an effective registration statement for the Warrant Shares, filing or qualification for a period of five (5) years from the commencement of sales of the Offering, the Holder shall be entitled to one (1) demand right for the registration of the Warrant Shares with respect at the Company’s expense (other than any underwriting discounts, selling commissions, share transfer taxes applicable to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filingsale of the Warrant Shares, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders Holder) (the “Demand Registration”). In the event of a Demand Registration, the Company agrees to use its commercially reasonable efforts to qualify or register the applicable Warrant Shares in such states as selected are reasonably requested by them.
the Holder(s); provided, however, that in no event shall the Company be required to register the applicable Warrant Shares in a state in which such registration would cause (i) The the Company covenants and agrees to be obligated to qualify to do business in such state or execute a general consent to service of process, or would subject the Company to taxation as a foreign corporation doing business in such jurisdiction or (ii) the principal shareholders of the Company to be obligated to escrow their shares of capital stock of the Company. All Holders of Warrant Shares proposing to distribute their securities through a Demand Registration that involves an underwriter or underwriters shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such Demand Registration. Furthermore, each Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event must provide such information as reasonably requested by the Company proposes (which information shall be limited to file a registration statement that which is required for disclosure under the Securities Act (includingand the forms, without limitation, relating rules and regulations promulgated thereunder) to an initial public offering of Company Common Stock be included in the registration statement timely or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will may elect to exclude such Holder from the registration statement.
c) Notwithstanding the foregoing, the registration rights described in this Section 5 shall be subject to limitations imposed by the Commission’s rules or comments of the Commission staff in connection with its review of the registration statement for any such resale registration. Moreover, notwithstanding the foregoing registration obligations of the Company, if the Company furnishes to the Holders requesting a Demand Registration a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its shareholders for a registration statement to either become effective on or after remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Initial Exercise Date and on Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or before (iii) render the Expiration DateCompany unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall in each case give prompt written notice of such proposed filing have the right to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer defer taking action with respect to such Holders the opportunity to include in such Demand Registration or withdraw a related registration statement such number for a period of Shares as they may request in writing.
not more than forty-five (ii45) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included thereincalendar days; provided, however, that the Company shall may not be required to honor any such request that is received invoke this right more than sixty twice in any twelve (6012) days after month period or during the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA twelve (the “Other Shares”12) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering month period prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designateTermination Date.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.
Appears in 3 contracts
Samples: Underwriting Agreement (SHENGFENG DEVELOPMENT LTD), Purchase Warrant Agreement (SHENGFENG DEVELOPMENT LTD), Representative's Purchase Warrant (SHENGFENG DEVELOPMENT LTD)
Registration Rights. (a) The Company shall agrees that upon written notice given to the Company at any time on or after the first anniversary of the effective date of the public offering of the Common Stock but before the fifth anniversary of the effective date of the public offering, from the holder or holders of not less than fifty-one percent (51%) of the shares issued and issuable upon exercise of the Warrants, of a proposed distribution by such holder or holders of Common Stock issued or issuable upon exercise of Warrants, the Company will, within 45 days after receipt of such notice, promptly prepare, file and diligently prosecute to effectiveness, an appropriate filing with the Commission of a registration statement covering the proposed sale or distribution of all or any part of such shares under the Securities Act covering of 1933, as amended (the resale of all Shares of the Holder as soon as practicable following the Holder’s written request to do so"Act"), and the appropriate registration statements or applications under the securities laws of such states as such holders, in their discretion, shall determine, and will use its reasonable best efforts to have such registration and application (including both the registration statement under the Act and the registration or application made under the various state securities laws) declared effective by as soon as practicable after the SEC filing thereof and to remain effective for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall such period that may be reasonably acceptable necessary to complete the Holderdistribution of securities so registered or qualified. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for At least 15 days prior to such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to each registered holder of any Warrants at the Holder (holders' addresses appearing on the records of the Company and to each registered holder of Common Stock purchased from the exercise of any subsequent Holders of this Warrant and/or Shares) Warrants at least sixty (60) days before such holder's address appearing on the proposed filing date andCompany records, by such notice, and shall offer to such Holders the opportunity to include in such registration statement any proposed distribution of such number of Shares Common Stock held or to be held by each such registered holder; provided, however, that except as they may request provided in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permitSection 7(e), the Holders from whom such written requests have been received to include such number Company need not effect the registration of Shares the sale or distribution of Common Stock purchased upon exercise of Warrants more than once. All expenses, disbursements and fees (including fees and expenses of counsel for the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable Company, special auditing fees specifically attributable to the Holders as sale by the terms and conditions applicable to securities selling holder or holders of Common Stock, printing expenses (including all necessary copies of the Company included therein or as applicable to securities registration statement and prospectuses contained therein), registration and filing fees and blue sky fees and expenses, and fees and charges of any person other than the Company Company's transfer agent and registrar for services rendered in connection therewith) shall be borne by the Holders of Piggy-back Shares if the securities of any such person are included thereinCompany; provided, however, that the Company shall not be required to honor pay for any expenses of any registration proceeding begun (in which case holders shall bear such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(iiexpenses), if the underwriter advises registration request is subsequently withdrawn at any time at the Holder in writing that marketing factors require a limitation request of the number holder or holders of not less than 51% of the shares issued and issuable upon exercise of the Warrants, unless such withdrawal is due to the misconduct of the Company or due to an unforeseen material adverse change in the business, properties, prospects or financial condition of the Company occurring prior to the effectiveness of the registration statement, in which case the Company will continue to bear such expenses.
(b) In connection with any registration under the Act and specified state securities law pursuant to this Agreement, the Company will, without charge, furnish each holder whose shares are registered thereunder with copies of the registration statement and all amendments thereto and will, without charge, supply each such holder with copies of any preliminary and final prospectus included therein in such quantities as may be necessary for the purposes of such proposed sale or distribution that the holder or holders may reasonably request.
(c) In connection with any registration of shares pursuant to be underwrittenthis Section 7, the number holders whose shares are being registered shall furnish the Company with such information concerning such holders and the proposed sale or distribution as shall be required for use in the preparation of Shares held such registration statement and applications.
(d) Notwithstanding the foregoing provisions of this Section 7, upon receipt of such written notice from the holder or holders of not less than fifty one percent (51%) of the shares issued and issuable upon exercise of the Warrants requesting that the Company effect registration of the sale or distribution of Common Stock as provided in Section 7(a) or upon election by holders of Warrants or Common Stock to participate in a registration pursuant to Section 7(e), the Holder Company shall have the option, for a period of ten (10) days thereafter, to be included in purchase all or any such underwriting shall not be reduced unless Warrants and all other securities, other than securities to be registered or any such shares of Common Stock acquired pursuant to the exercise of the Warrants and held by holders providing the request for registration rights granted under Section 7(a) and/or 7(e) and held by any other holder of Warrants or shares issued and will exercise its option if it so elects as follows:
(i) as to such Warrants, at a price per Warrant equal to the difference between (A) the average of the means between the closing bid and asked prices of the Common Stock in the 2008 SPA over-the-counter market for 20 consecutive business days commencing 30 business days before the date of receipt of such notice, (B) if the “Other Shares”) and securities to be offered for Common Stock is quoted on the account Nasdaq SmallCap Market, at the average of the Holders means of the New Warrants daily closing bid and asked prices of the Common Stock for 20 consecutive business days commencing 30 business days before the date of such notice, or (C) if the Common Stock is listed on any national securities exchange or quoted on the Nasdaq National Market System, at the average of the daily closing prices of the Common Stock for 20 consecutive business days commencing 30 business days before the date of such notice and the CompanyExercise Price of the Warrant at the time of receipt of such notice; and
(ii) as to shares of Common Stock previously purchased pursuant to the exercise of Warrants, are first entirely excluded from at a price per share equal to (A) the underwritingaverage of the means between the closing bid and asked prices of the Common Stock in the over-the-counter market for 20 consecutive business days commencing 30 business days before the date of such notice, and unless (b) if the number of Other Shares, Common Stock is quoted on the one handNasdaq SmallCap Market, at the average of the means of the daily closing bid and Piggy-back Shares asked prices of the Common Stock for 20 consecutive business days commencing 30 business days before the date of such notice or (C) if the Common Stock is listed on any national securities exchange or the other handNasdaq National Market System, are cut back at the average of the daily closing prices of the Common Stock for 20 consecutive business days commencing 30 business days before the date of such notice (such value of shares so determined in this Section 7(d)(ii), as the case may be, is referred to herein as the "Current Value").
(e) If any time on or after the first anniversary of the date hereof but before the fifth anniversary of the date hereof the Company proposes to file a pro rata basis based on registration statement under the number Act covering a proposed sale of Piggy-back Shares shares of Common Stock, it shall give to each holder who then owns any Warrants or any shares of Common Stock acquired pursuant to the exercise of the Warrants notice of such proposed registration at least 30 days prior to the filing of the registration statement and Other Shares requested shall afford each such holder who then proposed to be sell or distribute publicly any of the shares subject to the Warrants upon giving not less than 10 days notice prior to such filing, the opportunity to have such shares included in such offeringthe securities registered under the registration statement. The Company shall bear All expenses, disbursements and pay all fees (including, but without limitation, fees and expenses of counsel, auditing fees, printing expenses, SEC filing fees and expenses, but excluding any underwriting discounts or commissions) incurred in connection with any registration, filing or qualification the registration by the Company of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case shares for any such loss, claim, damage, liability, or action to holder under this Section 7(e) shall be borne by the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawCompany.
Appears in 3 contracts
Samples: Warrant Agreement (Cd Warehouse Inc), Warrant Agreement (Horizon Pharmacies Inc), Warrant Agreement (Lorecom Technologies Inc)
Registration Rights. (a) The Company shall agrees that within sixty (60) days of the Closing, it will use its reasonable best efforts to prepare and file a registration statement under with the Securities Act covering the resale of all Shares of the Holder as soon as practicable following the Holder’s written request to do soand Exchange Commission, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by thereafter, a Registration Statement on Form S-1 or other equivalent form pursuant to which the Company and shall be reasonably acceptable to register the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation public resale of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwritingShares. The Company shall bear have the right to include within such Registration Statement any other securities on behalf of the Company or security holders. The expenses of such registration shall be borne by the Company. Notwithstanding the foregoing, the Company may: (A) delay filing the Registration Statement and pay all expenses incurred may withhold efforts to cause the Registration Statement to become effective, if the Company determines in connection good faith that such registration rights might (i) interfere with or affect the negotiation or completion of any registrationtransaction that is being contemplated by the Company (whether or not a final decision has been made to undertake such transaction) at the time the right to delay is exercised, filing or qualification (ii) involve initial or continuing disclosure obligations that might not be in the best interest of the Company's stockholders, and (B) not include the Shares in a Registration Statement covering an underwritten offering to the extent that the inclusion of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) thatwould, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering opinion of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed such an offering, adversely affect such an offering to permitor the market for the Company's securities. In the event that the Shares are not included in the Registration Statement in accordance with the provisions of clause (B) above, the Holders from whom such written requests have been received Company agrees to include such number of register the Shares (promptly after the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities completion of the Company included therein or underwritten offering described in clause (B) as applicable to securities may be permitted by the managing underwriter of any person other than such an offering. If, after the Registration Statement becomes effective, the Company and advises the Holders holders of Piggy-back registered Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after considers it appropriate for the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares Registration Statement to be underwrittenamended, the number holders of such Shares shall suspend any further sales of their registered Shares until the Company advises them that the Registration Statement has been amended. Each holder of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be whose shares are registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company Registration Statement set forth herein shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless the Company, each Holder, the partners, members, officers, of its directors and stockholders each of each Holder, legal counsel its officers from and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay all claims, damages or liabilities, joint or several, to each such Holderwhich they or any of them may become subject, underwriterincluding all legal and other expenses, controlling person arising out of or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statementthe Registration Statement, including in any preliminary or amended preliminary prospectus or final in the prospectus contained therein (or any amendments the Registration Statement or supplements thereto, (iiprospectus as from time to time amended or supplemented) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, therein or necessary in order to make the statements therein not misleadingmisleading in the circumstances in which they were made, but only insofar as any such statement or omission was made in reliance upon and in conformity with information furnished in writing to the Company in connection therewith by such holder expressly for use therein. In connection with the registration rights, the Company shall have no obligation: (i) to assist or cooperate in the offering or disposition of such Shares; (ii) to indemnify or hold harmless the holders of the securities being registered; (iii) any violation to obtain a commitment from an underwriter relative to the sale of such Shares; or alleged violation by any other party hereto, (iv) to include such Shares within an underwritten offering of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawCompany.
Appears in 3 contracts
Samples: Securities Purchase Agreement (VDC Communications Inc), Securities Purchase Agreement (VDC Communications Inc), Securities Purchase Agreement (Moran Frederick A)
Registration Rights. (a) The Company shall file If at any time following the date of this Agreement that any Registrable Securities (as defined below) remain outstanding and are not freely tradable under Rule 144 (A) there are not one or more effective registration statements under the U.S. Securities Act covering all of the Registrable Securities and (B) VIA proposes for any reason to register any Ordinary Shares or ADSs under the U.S. Securities Act (other than pursuant to a registration statement under the Securities Act covering the resale of all Shares of the Holder as soon as practicable following the Holder’s written request to do so, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholderF4 or Form F-8 (or a similar or successor form)) with respect to an offering by VIA for its own account or for the account of any class of security which becomes its holders of Ordinary Shares or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration DateADSs, then the Company it shall in at each case such time promptly give prompt written notice to Corning of such proposed filing its intention to do so and, to the Holder (and any subsequent Holders extent permitted under the provisions of this Warrant and/or Shares) at least sixty (60) days before Rule 415 under the proposed filing date andU.S. Securities Act, by such notice, shall offer to such Holders the opportunity to include in such registration statement all Registrable Securities with respect to which Corning has requested inclusion therein within fifteen (15) Business Days after receipt of VIA’s notice (or five (5) Business Days if VIA states in such written notice or gives telephonic notice to Corning with written confirmation to follow promptly thereafter, stating that (i) such registration will be on Form F3 and (ii) such shorter period of time is required because of an earlier planned filing date) (a “Piggyback Registration”). Such notice shall offer Corning the opportunity to register such number of Shares shares of Registrable Securities as they Corning may request in writingand shall indicate the intended method of distribution of such Registrable Securities.
(iib) The Company shall permit, or shall cause If the managing underwriter of a proposed any underwritten offering to permit, the Holders from whom such written requests have been received to include such number shall inform VIA by letter of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, its belief that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares Registrable Securities requested to be included in such registration pursuant to this Section 5.3, when added to the number of other securities to be offered in such registration by VIA, would materially adversely affect such offering. The Company , then VIA shall bear include in such registration, to the extent of the total number of securities which VIA is so advised can be sold in (or during the time of) such offering without so materially adversely affecting such offering, securities in the following priority: (x) first, all ADSs or Ordinary Shares or securities convertible into, or exchangeable or exercisable for, ADSs or Ordinary Shares that VIA proposes to register for its own account; and pay (y) second, the Registrable Securities and any other securities requested to be included that are owned by all expenses incurred holders thereof requesting inclusion, pro rata based on the respective amounts of Registrable Securities and other securities held by Corning and such other holders.
(c) Notwithstanding the foregoing, (A) if such registration involves an underwritten public offering, Corning must sell its Registrable Securities to, if applicable, the underwriter(s) at the same price and subject to the same underwriting discounts and commissions that apply to the other securities sold in such offering and subject to Corning entering into customary underwriting documentation for selling stockholders in an underwritten public offering, and (B) if, at any time after giving written notice of its intention to register any Registrable Securities and prior to the effective date of the registration statement filed in connection with any such registration, filing VIA shall determine for any reason not to cause such registration statement to become effective under the U.S. Securities Act, VIA shall deliver written notice to Corning and, thereupon, shall be relieved of its obligation to register any Registrable Securities in connection with such registration.
(d) For purposes of this Agreement “Registrable Securities” means (i) the Corning Shares and (ii) any other securities issued or qualification issuable with respect to or in exchange for the Corning Shares, whether by way of the Shares a stock dividend or distribution, stock split or similar transaction, or by merger, charter amendment, or otherwise; provided, that, a security shall cease to be a Registrable Security (and any obligation of VIA with respect thereto shall terminate) for so long as (a) a registration statement with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation sale of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify Registrable Securities is declared effective by the Shares for offer or sale SEC under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the U.S. Securities Act or and such Registrable Securities have been disposed of by the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them holder thereof in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection accordance with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements theretoeffective Registration Statement, (iib) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleadingsuch Registrable Securities have been previously sold in accordance with Rule 144, or (iiic) any violation or alleged violation by any other party hereto, from and after the second anniversary of the Securities ActClosing Date, the Exchange Act, any state such securities law are eligible for resale pursuant to Rule 144 without volume or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawmanner-of-sale restrictions and without current public information.
Appears in 3 contracts
Samples: Investment Agreement (Via Optronics AG), Investment Agreement (Via Optronics AG), Investment Agreement (Via Optronics AG)
Registration Rights. (a) This Warrant has not been registered under the Securities Act of 1933, as amended (the “Securities Act”). When exercised, the stock certificates shall bear the following legend unless the Warrant Shares may be publicly sold under Rule 144(b)(1) of the Securities Act (or successor rule) or registered under the Securities Act pursuant to an effective registration statement filed with the Securities and Exchange Commission (the “Commission”). “The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and may not be offered for sale or sold except pursuant to (i) an effective registration statement under the Securities Act, or (ii) an opinion of counsel, if such opinion and counsel shall be reasonably satisfactory to counsel to the issuer, that an exemption from registration under the Securities Act is available.”
(b) Until such time as the Registrable Securities (as defined below) may be sold in accordance with Rule 144(b) under the Securities Act, if the Company shall at any time proposes to file on its behalf and/or on behalf of any of its security holders a registration statement under the Securities Act covering the resale of all Shares of the Holder as soon as practicable following the Holder’s written request to do so, and use its reasonable best efforts to have the on any form (other than a registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable on Form S-4 or S-8 or any successor form or to the Holder. The Holder shall (together with Company’s employees pursuant to any employee benefit plan, respectively) for the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision general registration of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares securities to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares sold for cash with respect to the registrations pursuant to this Section for each HolderCommon Stock, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes it will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty ten (6010) days before the proposed initial filing with the Commission of the registration statement (or, in the case of a registration statement that has already been filed with the Commission but has not yet been declared effective, within ten (10) days before the anticipated effective date andof the registration statement), by such notice, which notice shall offer to such Holders the Holder the opportunity to include in such registration statement such the number of Shares Registrable Securities as they the Holder may request (a “Piggyback Registration”), subject to the provisions of Section 5(c) hereof. Upon the request of the Holder made within ten (10) days after the receipt of notice from the Company regarding a Piggyback Registration (which such request shall specify the number of Registrable Securities for which registration is being requested), the Company shall use its commercially reasonable efforts to effect the registration under the Securities Act of all Registrable Securities that the Company has been so requested to register by the Holder; provided that nothing in writingthis Section 5(b) shall preclude the Company from discontinuing the registration of its securities being effected at any time and for any reason before the effective date of the registration relating thereto; but, in that event, the Company shall notify the Holder of such discontinuation of the registration. The Company shall pay all registration expenses in connection with each Piggyback Registration.
(iic) The Company shall permit, or shall cause If the lead managing underwriter of a proposed public offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that by the Company shall not be required to honor any such request that is received more than sixty (60) days after advise the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder Company in writing that marketing factors require a limitation of the number of shares to be underwrittenthat, in their good faith opinion, the number of Shares held by the Holder Registrable Securities to be included in such underwriting shall not be reduced unless all other securities, other than registration would materially and adversely affect the marketing or price of the securities to be registered pursuant to the registration rights granted sold in the 2008 SPA (public offering, the “Other Shares”) and Company will allocate the securities to be offered for included in such registration statement in accordance with the account of following priority: (i) first, the Holders of securities to be included in such registration statement by the New Warrants Company or the holder or holders initiating the registration statement; and (ii) next, the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares Registrable Securities requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such the Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.
Appears in 3 contracts
Samples: Warrant Agreement (GRANDPARENTS.COM, Inc.), Warrant Agreement (GRANDPARENTS.COM, Inc.), Warrant Agreement (GRANDPARENTS.COM, Inc.)
Registration Rights. (a) The If at any time, the Company shall file a registration statement proposes to register the offer and sale of shares of its Common Stock under the Securities Act covering of 1933, as amended (the “Securities Act”), solely for the benefit of selling stockholders on any form of registration statement and not for any primary offering of the securities of the Company, which registration statement had not been filed prior to the date hereof (a “Piggyback Registration Statement”), the Company shall each such time give the Purchaser prior written notice of the filing of such Piggyback Registration Statement. Upon the written request of the Purchaser received not less than five (5) business days prior to the filing of such Piggyback Registration Statement, the Company shall use its reasonable efforts to cause to be registered under the Securities Act the resale of all any Note Shares and/or Warrant Shares issued or issuable to the Purchaser that the Purchaser has requested to be registered at such time, subject to the Purchaser’s provision of an executed Selling Stockholder Notice and Questionnaire, substantially in the form attached hereto as Exhibit C, as well as such other information about the Purchaser as may reasonably be requested by the Company to facilitate such registration.
(b) If a Piggyback Registration Statement contemplates an underwritten public offering, the Company shall so advise the Purchaser as part of the Holder written notice given pursuant to Section 5(a) above. The Purchaser agrees, in each such instance, as soon as practicable following a condition to registering the Holderoffer and sale of the Purchaser’s written request to do so, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof Note Shares and/or Warrant Shares by means of an underwriting. The underwriter will the Piggyback Registration Statement, (1) to be selected by the Company party to and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into execute an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a)form, and (2) that, if the underwriter advises underwriters advise the Holder in writing Company that marketing factors require a limitation the amount of the number of Note Shares to be underwritten, the number of and Warrant Shares held by the Holder proposed to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from offering exceeds the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) maximum amount that, in the event opinion of such underwriters, can be sold without adversely affecting the Company proposes to file a registration statement under offering price, timing, distribution method, or probability of success of such offering (the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date“Maximum Amount”), then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder amount to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the CompanyMaximum Amount, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a allocated pro rata basis based on across participating investors in this Offering, in proportion to the number aggregate amount of Piggy-back Note Shares and Other Warrant Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected registered by themeach.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.
Appears in 3 contracts
Samples: Subscription Agreement (CytoDyn Inc.), Subscription Agreement (CytoDyn Inc.), Subscription Agreement (CytoDyn Inc.)
Registration Rights. With respect to the Registration Rights, the parties ------------------- agree as follows:
(a) Subject to Paragraph 2(b), the Company will (i) promptly give to the Holder written notice of any registration relating to an Underwritten Public Offering, and (ii) include in such registration (and related qualification under blue sky laws or other compliance) such of the Holder's Registrable Securities as are specified in the Holder's written request or requests, mailed in accordance with the terms of this Agreement within 30 days after the date of such written notice from the Company.
(b) The Company shall file a registration statement under the Securities Act covering the resale of all Shares right of the Holder as soon as practicable following to registration pursuant to the Registration Rights shall be conditioned upon the Holder’s written request to do so's participation in such underwriting, and use its reasonable best efforts to have the registration statement declared effective by inclusion of the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by Registrable Securities in the Company and underwriting shall be reasonably acceptable limited to the Holderextent provided herein. The Holder shall (together with the Company as provided herein belowCompany) enter into an underwriting agreement in a customary form with the managing underwriter or underwriters selected for such underwritingthe Underwritten Public Offering by the Company. Notwithstanding any other provision of this Section 19(a)Agreement, if the managing underwriter advises the Holder in writing determines that marketing factors require a limitation of the number of Shares the Registrable Securities to be underwritten, the managing underwriter may limit some or all of the Registrable Securities that may be included in the registration and the Underwritten Public Offering as follows: the number of Shares held the Registrable Securities that may be included in the registration and the Underwritten Public Offering by the Holder to shall be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from determined by multiplying the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification number of the Shares with respect to shares of the registrations pursuant to this Section for each Holder, including (without limitation) Registrable Securities of all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements selling shareholders of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity managing underwriter is willing to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause and the managing underwriter of Underwritten Public Offering times a proposed offering to permitfraction, the Holders from whom such written requests have been received to include such number numerator of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that which is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares Registrable Securities requested to be included in such offering. The Company shall bear registration and pay all expenses incurred in connection with any registrationthe Underwritten Public Offering by the Holder, filing or qualification and the denominator of which is the total number of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) Registrable Securities which all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements selling shareholders of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares have requested to be included in such piggy-back offering prior to registration and the consummation Underwritten Public Offering. To facilitate the allocation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed shares in accordance with the piggy-back offeringabove provisions, the Company will have no obligation may round the number of shares allocable to proceed with any such person to the offering nearest 100 shares. If the Holder disapproves of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement terms of any such lossunderwriting, claimit may elect to withdraw therefrom by written notice to the Company and the managing underwriter, damage, liability, or action if such settlement is effected without delivered not less than seven days before the consent effective date of the Company (which consent Underwritten Public Offering. Any of the Registrable Securities excluded or withdrawn from the Underwritten Public Offering shall be withdrawn from such registration, and shall not be unreasonably withheld, delayed or conditioned), nor shall transferred in a public distribution prior to 60 days after the Company be liable in any such case for any such loss, claim, damage, liabilityeffective date of the Registration Statement relating thereto, or action to such other shorter period of time as the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto underwriters may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawrequire.
Appears in 3 contracts
Samples: Consulting Agreement (Biolynx Com Inc), Financial Advisory Agreement (Biolynx Com Inc), Financial Advisory Agreement (Biolynx Com Inc)
Registration Rights. (a) The Company HSNi ------------------- hereby grants the Stockholder certain registration rights on the basis of one demand registration right for each 4,000,000 shares of Common Stock being exchanged hereunder, together with customary piggyback registration rights relating thereto. Accordingly, HSNi hereby covenants to the Stockholder that following the one year anniversary of the Closing Date, if requested by the Stockholder, it shall file a registration statement be required promptly to cause the HSNi Shares and the Additional HSNi Shares, if any, owned by the Stockholder or his Affiliates to be registered under the Securities Act covering in order to permit the resale Stockholder or such Affiliate to sell such shares in one or more (but not more than three) registered public offerings (each, a "Demand Registration"). The Stockholder shall also be entitled to customary piggyback registration rights. If the amount of all Shares shares sought to be registered by the Stock- holder and his Affiliates pursuant to any Demand Registration is reduced by more than 50% pursuant to any underwriters' cutback, then the Stockholder may elect to request the Company to withdraw such registration, in which case, such registration shall not count as one of the Holder Stockholder's three Demand Registrations. If the Stockholder requests that any Demand Registration be an underwritten offering, then the Stockholder shall select the underwriter(s) to administer the offering, provided that such underwriter(s) shall be reasonably satisfactory to HSNi. If a Demand Registration is an underwritten offering and the managing underwriter advises the Stockholder in writing that in its opinion the total number or dollar amount of securities proposed to be sold in such offering is such as soon to materially and adversely affect the success of such offering, then HSNi will include in such registration, first, the securities of the Stockholder, and, thereafter, any securities to be sold for the account of others who are participating in such registration (as practicable following determined by HSNi). In connection with any Demand Registration or inclusion of the Holder’s written request to do soStockholder's or his Affiliate's shares in a piggyback registration, the Company, the Stockholder and/or his Affiliates shall enter into an agreement containing terms (including representations, covenants and use its reasonable best efforts to have indemnities by HSNi and the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company Stockholder), and shall be reasonably acceptable subject to the Holderlimitations, conditions, and blackout periods, customary for a secondary offering by a selling stockholder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation costs of the number of Shares to be underwrittenregistration (other than underwriting discounts, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected commissions) shall be paid by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company HSNi. HSNi shall not be required to honor any register such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), shares if the underwriter advises Stockholder would be permitted to sell the Holder HSNi Shares and/or Additional HSNi Shares in writing that marketing factors require a limitation of the number of shares quantities proposed to be underwrittensold and at such time under Rule 144 of, or other exemption from, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by themSecurities Act.
(iiib) The Company If HSNi and the Stockholder cannot agree as to what constitutes customary terms within 10 days of the Stockholder's request for registration (whether in a Demand Registration or a piggyback registration), then such determination shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased made by a Holder so long as such Holder submits an undertaking law firm of national reputation mutually acceptable to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) HSNi and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawStockholder.
Appears in 3 contracts
Samples: Stock Exchange Agreement (HSN Inc), Stock Exchange Agreement (HSN Inc), Stock Exchange Agreement (Allen Paul G)
Registration Rights. (a) The Company shall use commercially reasonable efforts to file a registration statement under the Securities Act covering the resale of all Shares of the Holder Underlying Shares on or before the 60th day after the Closing Date and have such Registration Statement declared effective on or before the 120th day after the Closing Date.
(b) If at any time after the Closing Date there is not an effective registration statement covering all of the Underlying Shares and the Company proposes to file any registration statement under the Securities Act with respect to the Common Stock (a “Registration Statement”), by the Company for its own account or for shareholders of the Company for their account (or by the Company and by shareholders of the Company), other than a Registration Statement (i) filed in connection with any employee stock option or other benefit plan, (ii) for a dividend reinvestment plan or (iii) in connection with a merger or acquisition, then the Company shall (x) give written notice of such proposed filing to the Purchaser as soon as practicable following but in no event less than ten (10) days before the Holder’s written request anticipated filing date of the Registration Statement, which notice shall describe the amount and type of securities to do sobe included in such Registration Statement, the intended method(s) of distribution, and use its reasonable best efforts the name of the proposed managing underwriter or underwriters, if any, of the offering, and (y) offer to have Purchaser in such notice the registration statement declared effective by opportunity to register the SEC for distribution thereof by means sale of an underwritingsuch number of Underlying Shares (the “Registrable Securities”) as Purchaser may request in writing within five (5) days following receipt of such notice (a “Piggy-Back Registration”). The Company shall cause such Registrable Securities to be included in such registration and shall cause the managing underwriter will or underwriters of a proposed underwritten offering to permit the Registrable Securities requested to be selected by included in a Piggy-Back Registration on the same terms and conditions as any similar securities of the Company and shall be reasonably acceptable to permit the Holder. The Holder shall (together sale or other disposition of such Registrable Securities in accordance with the Company as provided herein belowintended method(s) of distribution thereof. If Purchaser proposes to distribute its Registrable Securities through a Piggy-Back Registration that involves an underwriter or underwriters, then it shall enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision Piggy-Back Registration.
(c) If a Piggyback Registration is initiated as a primary underwritten offering on behalf of this Section 19(a), if the Company and the managing underwriter advises the Holder Company and the Purchaser (if Purchaser has elected to include Registrable Securities in such Piggyback Registration) in writing that marketing factors require a limitation of in its reasonable and good faith opinion the number of Shares to be underwritten, the number shares of Shares held by the Holder Common Stock proposed to be included in such underwriting shall not be reduced unless registration, including all Registrable Securities and all other securities are first entirely excluded from shares of Common Stock proposed to be included in such underwritten offering, exceeds the underwritingnumber of shares of Common Stock which can be sold in such offering and/or that the number of shares of Common Stock proposed to be included in any such registration or takedown would adversely affect the price per share of the Common Stock to be sold in such offering, the Company shall include in such registration (i) first, the shares of Common Stock that the Company proposes to sell; (ii) second, the shares of Common Stock requested to be included therein by Purchaser; and (iii) third, the shares of Common Stock requested to be included therein by holders of Common Stock other than Purchaser, allocated among such holders in such manner as they may agree.
(d) Purchaser may elect to withdraw such Purchaser’s request for inclusion of Registrable Securities in any Piggy-Back Registration by giving written notice to the Company of such request to withdraw prior to the effectiveness of the Registration Statement. The Company (whether on its own determination or as the result of a withdrawal by persons making a demand pursuant to written contractual obligations) may withdraw a Registration Statement at any time prior to the effectiveness of such Registration Statement. Notwithstanding any such withdrawal, the Company shall bear and pay all expenses incurred by Purchaser of Registrable Securities in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders such Piggy-Back Registration as selected by themprovided herein.
(ie) The Company shall notify Purchaser at any time when a prospectus relating to such Purchaser’s Registrable Securities is required to be delivered under the Securities Act, upon discovery that, or upon the happening of any event as a result of which, the prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing. At the request of Purchaser, the Company shall also prepare, file and furnish to Purchaser a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to Purchaser, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing. Purchaser shall not offer or sell any Registrable Securities covered by the Registration Statement after receipt of such notification until the receipt of such supplement or amendment. The Company covenants and agrees that it will comply with the Holder (and any subsequent Holders prospectus delivery requirements of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act as applicable to it (unless an exemption therefrom is available) in connection with sales of Registrable Securities pursuant to the Registration Statement and shall sell the Registrable Securities only in accordance with a method of distribution described in the Registration Statement.
(f) The Company may request that Purchaser furnish the Company such information with respect to Purchaser and Purchaser’s proposed distribution of the Registrable Securities pursuant to the Registration Statement as the Company may from time to time reasonably request in writing or as shall be required by law or by the Commission in connection therewith, and such Purchaser shall furnish the Company with such information.
(g) All fees and expenses incident to the performance of or compliance with this Section 4.15 shall be borne by the Company whether or not any Registrable Securities are sold pursuant to a Registration Statement. The fees and expenses referred to in the foregoing sentence shall include, without limitation, (i) all registration and filing fees (including, without limitation, relating to an initial fees and expenses of the Company’s counsel and independent registered public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholderaccountants) (A) with respect to any class of security which becomes or which filings made with the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration DateCommission, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or SharesB) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares filings required to be included made with any trading market on which the Common Stock is then listed for trading, (C) in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the compliance with applicable state securities or Blue Sky laws reasonably agreed to by the Company in writing (including, without limitation, fees and disbursements of counsel for the Company in connection with Blue Sky qualifications or exemptions of the Registrable Securities) and (D) with respect to any filing that may be required to be made by any broker through which Purchaser of Registrable Securities intends to make sales of Registrable Securities with the FINRA, (ii) printing expenses, (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the Company, (v) Securities Act liability insurance, if the Company so desires such states which insurance, and (vi) fees and expenses of all other persons or entities retained by the Holders Company in connection with the consummation of such Shares the transactions contemplated by this Agreement. In addition, the Company shall designatebe responsible for all of its internal expenses incurred in connection with the consummation of the transactions contemplated by this Agreement (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit and the fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange as required hereunder. In no event shall the Company be responsible for any broker or similar commissions of Purchaser.
(ivh) If the The Company decides not to proceed with the piggy-back offeringand its successors and assigns shall indemnify and hold harmless Purchaser, the Company will have no obligation to proceed officers, directors, members, partners, agents and employees (and any other individuals or entities with a functionally equivalent role of a person holding such titles, notwithstanding a lack of such title or any other title) of Purchaser, each individual or entity who controls Purchaser (within the offering meaning of Section 15 of the Piggy-back Shares.
Securities Act or Section 20 of the Exchange Act and the officers, directors, members, Agreement, partners, agents and employees (iand any other individuals or entities with a functionally equivalent role of a person holding such titles, notwithstanding a lack of such title or any other title) To of each such controlling individual or entity (each, an “Indemnified Party”), to the fullest extent permitted by applicable law, the Company will indemnify from and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means all losses, claims, damages, or liabilities liabilities, costs (joint or severalincluding, without limitation, reasonable attorneys’ fees) to which a party hereto may become subject under the Securities Actand expenses (collectively, the Exchange Act or other federal or state law“Losses”), insofar as such lossesincurred, claims, damages, or liabilities (or actions in respect thereof) arise arising out of or are based upon any of the following statements, omissions or violations: relating to (i1) any untrue statement or alleged untrue statement of a material fact contained in such registration statementa Registration Statement, including any related prospectus or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus prospectus, or final prospectus contained therein arising out of or relating to any amendments or supplements thereto, (ii) the omission or alleged omission to state therein of a material fact required to be stated therein, therein or necessary to make the statements therein (in the case of any such prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading, misleading or (iii2) any violation or alleged violation by any other party hereto, the Company of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law, or any rule or regulation thereunder, in connection with the performance of its obligations under this Agreement, except to the extent, but only to the extent, that (i) such untrue statements or omissions are based upon information regarding Purchaser furnished to the Company by such party for use therein. The Company shall notify Purchaser promptly of the institution, threat or assertion of any proceeding arising from or in connection with the transactions contemplated by this Agreement of which the Company is aware. If the indemnification herein is unavailable to an Indemnified Party or insufficient to hold an Indemnified Party harmless for any Losses, then the Company shall contribute to the amount paid or payable by such Indemnified Party, in such proportion as is appropriate to reflect the relative fault of the Company and Indemnified Party in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of the Company and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, the Company or the Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include any reasonable attorneys’ or other fees or expenses incurred by such party in connection with any proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for in herein was available to such party in accordance with its terms. It is agreed that it would not be just and equitable if contribution pursuant to this Section were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding sentence.
(i) Upon an Event of Default the rights hereunder shall become demand registration rights and the Purchaser may demand a resale registration statement covering all the Underlying Shares be filed, and the Company shall thereafter the Company shall file with the Commission a Registration Statement on Form S-1, or any other form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the resale by the Purchaser of all of the Registrable Securities, and the Company shall use its commercially reasonable efforts to cause such Registration Statement to be declared effective and to keep such Registration Statement effective for a period of twelve months (12) months or for such shorter period ending on the earlier to occur of (x) the sale of all Registrable Securities and (y) the availability of Rule 144 for the Holder to sell all of the Registrable Securities without volume limitations within a 90 day period and public information requirements (the “Effectiveness Period”); provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance pursuant to this Section, or keep such registration effective pursuant to the terms hereunder, in any particular jurisdiction in which the Company would be required to qualify to do business as a foreign corporation or as a dealer in securities under the securities laws of such jurisdiction or to execute a general consent to service of process in effecting such registration, qualification or compliance, in each case where it has not already done so. Notwithstanding the foregoing, in the event that the staff (the “Staff”) of the Commission should limit the number of Registrable Securities that may be sold pursuant to the Registration Statement, the Company may remove from the Registration Statement such number of Registrable Securities as specified by the Commission on behalf of all of the holders of Registrable Securities on a pro-rata basis within 30 days after the date of such demand and be declared effective no later than 60 days thereafter, and the Company shall utilize its commercially reasonable efforts to complete the same. The provisions of this Section 4.15 applicable to a Piggyback Registration, including Section 4.15(h), shall apply to a demand registration pursuant to this Section 4.15(i) to the extent applicable.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Western Magnesium Corp.), Securities Purchase Agreement (Western Magnesium Corp.), Securities Purchase Agreement (Western Magnesium Corp.)
Registration Rights. (a) The Company hereby agrees to include the Warrant Shares in the registration statement it files in connection with the Registration Rights Agreement (as defined in the Merger Agreement and Plan of Reorganization, dated as of July __, 2004, by and among the Company, TMH Acquisition Corp. and Vyteris, Inc.), provided that the Holder furnishes the Company with all information reasonably requested by the Company for purposes of filing that registration statement (such information shall be substantially the same information required to be delivered by the holders of Registrable Securities (as defined in the Registration Rights Agreement) pursuant to the Registration Rights Agreement) and provided that the Holder shall be subject to all obligations of the holders of Registrable Securities as set forth in the Registration Rights Agreement. It is understood that the Holder shall not be entitled to receive any of the liquidated damages provided for in the Registration Rights Agreement. In addition, if at any time following the date hereof, the Company shall determine to prepare and file with the Securities and Exchange Commission a registration statement relating to an offering for its own account or the account of others under the Securities Act covering of any of its equity securities, other than on Form S-4 or Form S-8 (each as promulgated under the resale of all Shares of the Holder as soon as practicable following the Holder’s written request Securities Act) or their then equivalents relating to do so, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares equity securities to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred issued solely in connection with any registrationacquisition of any entity or business or equity securities issuable in connection with the stock option or other employee benefit plans, filing or qualification of the Shares with respect then, to the registrations pursuant to this Section for each Holderextent permitted by the Registration Rights Agreement, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt send to the Holder a written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date determination and, by if within fifteen days after the date of such notice, the Holder shall offer to such Holders so request in writing, the opportunity to Company shall include in such registration statement such number all or any part of the Warrant Shares as they may request in writing.
(ii) The Company shall permitissuable hereunder, or shall cause the managing subject to customary underwriter cutbacks applicable to all holders of a proposed offering to permitregistration rights, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back extent such Warrant Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered eligible for resale pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale Rule 144 under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them are not included in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such an effective registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.
Appears in 3 contracts
Samples: Merger Agreement (Treasure Mountain Holdings Inc), Merger Agreement (Treasure Mountain Holdings Inc), Merger Agreement (Kimberlin Kevin)
Registration Rights. (a) The To the extent the Company shall file does not maintain an effective registration statement for the Warrant Shares and in the further event that the Company files a registration statement under with the Securities Act and Exchange Commission covering the resale sale of all Shares its shares of Common Stock (other than a registration statement on Form S-4 or S-8, or on another form, or in another context, in which such “piggyback” registration would be inappropriate), then, for a period of five (5) years from the commencement of sales of the offering, the Company shall give written notice of such proposed filing to the Holder as soon as practicable following but in no event less than thirty (30) calendar days before the Holder’s written request anticipated filing date, which notice shall describe the amount and type of securities to do sobe included in such offering, the intended method(s) of distribution, and the name of the proposed managing underwriter or underwriters, if any, of the offering, and offer to the Holder in such notice the opportunity to register the sale of such number of shares of Warrant Shares as such Holder may request in writing within five (5) days following receipt of such notice (a “Piggyback Registration”). The Company shall cause such Warrant Shares to be included in such registration and shall use its commercially reasonable best efforts to have cause the registration statement declared effective by managing underwriter or underwriters of a proposed underwritten offering to permit the SEC for distribution thereof by means Warrant Shares requested to be included in a Piggyback Registration on the same terms and conditions as any similar securities of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to permit the Holder. The Holder shall (together sale or other disposition of such Warrant Shares in accordance with the Company as provided herein belowintended method(s) of distribution thereof. All Holders proposing to distribute their securities through a Piggyback Registration that involves an underwriter or underwriters shall enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwritingPiggyback Registration. Notwithstanding any other provision of this Section 19(a)Furthermore, if the underwriter advises the each Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held must provide such information as reasonably requested by the Holder Company (which information shall be limited to that which is required for disclosure under the Securities Act and the forms, rules and regulations promulgated thereunder) to be included in the registration statement timely or the Company may elect to exclude such underwriting shall not be reduced unless all other securities are first entirely excluded Holder from the underwriting. The registration statement.
b) In addition, to the extent the Company shall bear and pay all expenses incurred in connection with any registrationdoes not maintain an effective registration statement for the Warrant Shares, filing or qualification for a period of five (5) years from the commencement of sales of the offering, the Holder shall be entitled to one (1) demand right for the registration of the Warrant Shares with respect at the Company’s expense (other than any underwriting discounts, selling commissions, share transfer taxes applicable to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filingsale of the Warrant Shares, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holder) and one (1) additional demand right for the registration of the Warrant Shares at the Holder’s expense (the “Demand Registration”). In the event of a Demand Registration, the Company shall use its commercially reasonable efforts to register the applicable Warrant Shares. All Holders as selected by them.
(i) The Company covenants and agrees of Warrant Shares proposing to distribute their securities through a Demand Registration that involves an underwriter or underwriters shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such Demand Registration. Furthermore, each Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event must provide such information as reasonably requested by the Company proposes (which information shall be limited to file a registration statement that which is required for disclosure under the Securities Act (includingand the forms, without limitation, relating rules and regulations promulgated thereunder) to an initial public offering of Company Common Stock be included in the registration statement timely or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will may elect to exclude such Holder from the registration statement.
c) Notwithstanding the foregoing, the registration rights described in this Section 5 shall be subject to limitations imposed by the Commission’s rules or comments of the Commission staff in connection with its review of the registration statement for any such resale registration. Moreover, notwithstanding the foregoing registration obligations of the Company, if the Company furnishes to the Holders requesting a Demand Registration a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its stockholders for a registration statement to either become effective on or after remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Initial Exercise Date and on Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or before (iii) render the Expiration DateCompany unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall in each case give prompt written notice of such proposed filing have the right to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer defer taking action with respect to such Holders the opportunity to include in such Demand Registration or withdraw a related registration statement such number for a period of Shares as they may request in writing.
not more than forty-five (ii45) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included thereincalendar days; provided, however, that the Company shall may not be required to honor any such request that is received invoke this right more than sixty twice in any twelve (6012) days after month period or during the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA twelve (the “Other Shares”12) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering month period prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designateTermination Date.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.
Appears in 3 contracts
Samples: Underwriter Common Stock Purchase Warrant (Scripps Safe, Inc.), Underwriter Common Stock Purchase Warrant (Scripps Safe, Inc.), Underwriter Common Stock Purchase Warrant (Scripps Safe, Inc.)
Registration Rights. (a) The Company shall agrees that it will prepare and file with the Securities and Exchange Commission (the "SEC"), within thirty (30) days after the date hereof, a registration statement on Form S-3 or if the Company is not eligible to use such Form S-3, another appropriate form of registration statement (the "Registration Statement"), at the sole expense of the Company (except as provided in Section 3(c) hereof), in respect of Holder's Registrable Securities, so as to permit resale of the Registrable Securities under the Securities Act. The Company agrees that it will cause the Registration Statement to become effective by April 15, 2000. The number of securities to be registered shall include all of Holder's Registrable Securities.
(b) The Company will maintain the Registration Statement or post-effective amendment filed under this Section 3 hereof current under Act covering until the resale earlier of (i) the date that all Shares of the Holder as soon as practicable following Registrable Securities have been sold pursuant to the Holder’s written request to do soRegistration Statement, (ii) the date that the Registrable Securities may be sold under the provisions of Rule 144 or (iii) three (3) years after the effective date of the Registration Statement (the "Effective Date").
(c) All fees, disbursements and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected out-of-pocket expenses and costs incurred by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, the preparation and filing or qualification of the Shares Registration Statement under Section 3(a) and in complying with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, applicable securities and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act Blue Sky laws (including, without limitation, relating all attorneys' fees) shall be borne by the Company. The Holder shall bear the costs of underwriting discounts and commissions, if any, applicable to an initial public offering the Registrable Securities being registered on its behalf and all of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date other fees and on or before the Expiration Date, then the Company shall in each case give prompt written notice expenses of such proposed filing registration, including of its counsel and such other expenses as are necessary to qualify the Holder (and sale of Registrable Securities in compliance with any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) state Blue Sky laws. The Company shall permit, or use its best efforts to qualify any of the securities for sale in such states as the Holder reasonably designates and shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) furnish indemnification in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; providedmanner provided in Section 9 hereof. However, however, that the Company shall not be required to honor qualify the Registrable Securities in any such request that is received more than sixty (60) days after the proper giving of the Company’s notice state or after the Expiration Date. Notwithstanding any jurisdiction which will require an escrow or other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant restriction relating to the registration rights granted Company and/or the sellers, or where the Company would be required to qualify as a dealer in securities under the 2008 SPA (the “Other Shares”) and securities to be offered for the account or blue sky laws of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offeringstate or jurisdiction. The Company shall bear and pay all expenses incurred in connection at its expense will supply the Holder with any registration, filing or qualification copies of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto such Registration Statement and the fees prospectus or offering circular included therein and disbursements of one counsel for other related documents in such quantities as may be reasonably requested by the selling Holders selected by themHolder.
(iiid) The Company shall not be obligated pursuant to required by this Section 19(b)(iii) 3 to include Holder's Registrable Securities in the piggy-back offering Shares that have not yet been purchased by a Registration Statement which is to be filed if, in the opinion of counsel for both the Holder so long as such Holder submits an undertaking to and the Company that (or, should they not agree, in the opinion of another counsel experienced in securities law matters acceptable to counsel for the Holder and the Company), the proposed offering or other transfer as to which such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the registration is requested is exempt from applicable federal and state securities laws and would result in all purchasers or Blue Sky laws of such states transferees obtaining securities which the Holders of such Shares shall designate.
(iv) If the Company decides are not to proceed with the piggy-back offeringrestricted securities, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject Rule 144 under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.
Appears in 3 contracts
Samples: Registration Rights Agreement (Spatializer Audio Laboratories Inc), Subscription Agreement (Spatializer Audio Laboratories Inc), Registration Rights Agreement (Spatializer Audio Laboratories Inc)
Registration Rights. (a) The Company shall agrees that it will use its best efforts to prepare and file with the Securities and Exchange Commission ("Commission"), within forty-five (45) days after the Closing Date, a registration statement which shall cover the underlying shares and warrant shares (on Form S-3) under the Securities 1933 Act covering (the "Registration Statement"), at the sole expense of the Company (except as provided in Section 3(c) hereof), in respect of all holders of Registrable Securities, so as to permit a resale of all Shares of the Holder as soon as practicable following Registrable Securities under the Holder’s written request to do so, and Act. The Company shall use its reasonable best efforts to have cause the registration statement declared Registration Statement that the Company is required to file to become effective by within one hundred five (105) days from the SEC for distribution thereof by means of an underwritingClosing Date. The underwriter will number of shares designated in the Registration Statement or any amendment thereto, to be selected by the Company and registered, shall be reasonably acceptable to the Holder. The Holder shall two hundred (together with the Company as provided herein below200%) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation percent of the number of Shares Securities that would be required if all the Registrable Securities were issued on the day before the filing of the Registration Statement.
(b) The Company will maintain the effectiveness the Registration Statement or post-effective amendment filed under this Section 3 hereof current under the 1933 Act until the earlier of (i) the date that all of the Registrable Securities have been sold pursuant to the Registration Statement, (ii) the date the holders thereof receive an opinion of counsel that all of the Registrable Securities may be underwrittensold under the provisions of Rule 144 or (iii) five years after the Issuance Date.
(c) All fees, the number of Shares held disbursements and out-of-pocket expenses and costs incurred by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, the preparation and filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto Registration Statement and the fees amendment under subparagraph 3(a) and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants in complying with applicable securities and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act Blue Sky laws (including, without limitation, all attorneys' fees) shall be borne by the Company. The Holder shall bear the cost of underwriting discounts and commissions, if any, applicable to the Registrable Securities being registered and the fees and expenses of its counsel. The Company shall qualify any of the securities for sale in such states as such Holder reasonably designates and shall furnish indemnification in the manner provided in Section 6 hereof. However, the Company shall not be required to qualify any of the securities for sale in any state which will require an escrow or other restriction relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes and/or the sellers. The Company at its expense will become supply the Holder with copies of the Registration Statement and the prospectus or offering circular included therein and other related documents in such quantities as may be reasonably requested by the Holders.
(d) The Company shall not be required by this Section 3 to include a Holder's Registrable Securities in any Registration Statement which is to be filed if, in the opinion of counsel for both the Holders and the Company (or, should they not agree, in the opinion of another counsel experienced in securities law matters acceptable to counsel for the Holders and the Company) the proposed offering or other transfer as to which such registration is requested is exempt from applicable federal and state securities laws and would result in all Investors or transferees obtaining securities which are not "restricted securities", as defined in Rule 144 under the 1933 Act.
(e) In the event the Registration Statement to be filed by the Company pursuant to Section 3(a) above is not filed with the Commission within forty-five (45) days from the Closing Date and/or the Registration Statement is not declared effective on or after by the Initial Exercise Date and on or before Commission within one hundred five (105) days from the Expiration Closing Date, then the Company will pay Holder (pro rated on a daily basis), as liquidated damages for such failure and not as a penalty, two (2%) percent of the Purchase Price of the then outstanding Securities for the first thirty (30) day period that such filing and/or effectiveness is delayed, and three (3%) percent of the Purchase Price of the then outstanding Securities for every thirty (30) days thereafter until the Registration Statement has been filed and/or declared effective. Such payment of the liquidated damages shall in each case give prompt written notice of such proposed filing be made to the Holder (and any subsequent Holders in cash, immediately upon demand, provided, however, that the payment of such liquidated damages shall not relieve the Company from its obligations to register the Securities pursuant to this Warrant and/or Shares) at least sixty (60) days before Section. If the proposed filing date and, by such notice, shall offer to such Holders Company does not remit the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable damages to the Holders as set forth above, the terms and conditions applicable Company will pay the Holders' reasonable costs of collection, including attorneys' fees, in addition to securities the liquidated damages. The registration of the Company included therein Securities pursuant to this provision shall not affect or limit Holders' other rights or remedies as applicable to securities of any person other than set forth in this Agreement.
(f) No provision contained herein shall preclude the Company and from selling securities pursuant to any Registration Statement in which it is required to include Registrable Securities pursuant to this Section 3.
(g) If at any time or from time to time after the effective date of the Registration Statement, the Company notifies the Holders in writing of Piggy-back Shares if the securities existence of a Potential Material Event (as defined in Section 3(h) below), the Holders shall not offer or sell any Registrable Securities or engage in any other transaction involving or relating to Registrable Securities, from the time of the giving of notice with respect to a Potential Material Event until such person are included thereinHolder receives written notice from the Company that such Potential Material Event either has been disclosed to the public or no longer constitutes a Potential Material Event; provided, however, that the Company shall may not be so suspend the right to such holders of Securities for more than two (2) twenty (20) day periods in the aggregate during any twelve month period, during the periods the Registration Statement is required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Datebe in effect. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require If a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting Potential Material Event shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering occur prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify date the Shares for offer or sale under Registration Statement is filed, then the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no Company's obligation to proceed with file the offering of the Piggy-back Shares.
Registration Statement shall be delayed without penalty for not more than two (i2) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter twenty (as defined in the Securities Act20) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.day
Appears in 2 contracts
Samples: Registration Rights Agreement (Interiors Inc), Registration Rights Agreement (Interiors Inc)
Registration Rights. (a) The To the extent the Company shall file does not maintain an effective registration statement for the Warrant Shares and in the further event that the Company files a registration statement under with the Securities Act Commission covering the resale sale of all Shares its shares of Common Stock (other than a registration statement on Form S-4 or S-8, or on another form, or in another context, in which such “piggyback” registration would be inappropriate), then, for a period of seven (7) years from the commencement of sales of the Holder offering, the Company shall give written notice of such proposed filing to the holder of the Warrant as soon as practicable following but in no event less than ten (10) days before the Holder’s written request anticipated filing date, which notice shall describe the amount and type of securities to do sobe included in such offering, the intended method(s) of distribution, and the name of the proposed managing underwriter or underwriters, if any, of the offering, and offer to the holder of the Warrant in such notice the opportunity to register the sale of such number of shares of Warrant Shares as such holder of the Warrant may request in writing within five (5) days following receipt of such notice (a “Piggyback Registration”). The Company shall cause such Warrant Shares to be included in such registration and shall use its reasonable best efforts to have cause the registration statement declared effective by managing underwriter or underwriters of a proposed underwritten offering to permit the SEC for distribution thereof by means Warrant Shares requested to be included in a Piggyback Registration on the same terms and conditions as any similar securities of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to permit the Holder. The Holder shall (together sale or other disposition of such Warrant Shares in accordance with the Company as provided herein belowintended method(s) of distribution thereof. All holders of Warrants proposing to distribute their securities through a Piggyback Registration that involves an underwriter or underwriters shall enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwritingPiggyback Registration. Notwithstanding any other provision Furthermore, each holder of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held Warrants must provide such information as reasonably requested by the Holder Company (which information shall be limited to that which is required for disclosure under the 1933 Act and the forms, rules and regulations promulgated thereunder) to be included in the registration statement timely or the Company may elect to exclude such underwriting shall not be reduced unless all other securities are first entirely excluded holder of Warrants from the underwritingregistration statement. The In addition, to the extent the Company shall bear and pay all expenses incurred in connection with any registrationdoes not maintain an effective registration statement for the Warrant Shares, filing or qualification for a period of five (5) years from the commencement of sales of the Offering, the holder of Warrants shall be entitled to one (1) demand right for the registration of the Warrant Shares with respect at the Company’s expense (other than any underwriting discounts, selling commissions, share transfer taxes applicable to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filingsale of the Warrant Shares, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(iholder of Warrants) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back SharesDemand Registration”) in ). In the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities event of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwrittenDemand Registration, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register the applicable Warrant Shares. All holders of Warrant Shares proposing to distribute their securities through a Demand Registration that involves an underwriter or qualify underwriters shall enter into an underwriting agreement in customary form with the Shares underwriter or underwriters selected for offer or sale such Demand Registration. Furthermore, each holder of Warrants must provide such information as reasonably requested by the Company (which information shall be limited to that which is required for disclosure under the state securities 1933 Act and the forms, rules and regulations promulgated thereunder) to be included in the registration statement timely or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not may elect to proceed with exclude such holder of Warrants from the piggy-back offeringregistration statement. Notwithstanding the foregoing, the Company will have no obligation registration rights described in this Section 5 shall be subject to proceed with limitations imposed by the offering Commission’s rules or comments of the Piggy-back Shares.
Commission staff in connection with its review of the registration statement for any such resale registration. Moreover, notwithstanding the foregoing registration obligations of the Company, if the Company furnishes to the holders of Warrants requesting a Demand Registration a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its stockholders for a registration statement to either become effective or remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would (i) To materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the fullest extent permitted by law, Company; (ii) require premature disclosure of material information that the Company will indemnify and hold harmless each Holder, has a bona fide business purpose for preserving as confidential; or (iii) render the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of Company unable to comply with requirements under the Securities Act or the Exchange Act, against any Violation (as defined herein below) and then the Company will pay shall have the right to each defer taking action with respect to such Holder, underwriter, controlling person Demand Registration or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurredwithdraw a related registration statement for a period of not more than forty-five (45) calendar days; provided, however, that the indemnity agreement contained in Company may not invoke this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable right more than twice in any such case for any such loss, claim, damage, liability, twelve (12) month period or action during the twelve (12) month period prior to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawTermination Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Focus Universal Inc.), Common Stock Purchase Warrant (Clip Interactive, LLC)
Registration Rights. If the Company proposes to register (a) The Company shall file including, for this purpose, a registration statement effected by the Company for stockholders other than the Purchasers) any of its Common Stock under the Securities Act covering in connection with the resale public offering of such securities solely for cash (other than in an Excluded Registration), the Company shall, at such time, promptly give each Purchaser notice of such registration. Upon the request of each Purchaser given within twenty (20) days after such notice is given by the Company, the Company shall cause to be registered all Shares of the Holder as soon as practicable following the Holder’s written request to do so, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for Registrable Securities that each such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder Purchaser has requested to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that in connection with any offering involving an underwriting of shares of Common Stock, the Company shall not be required to honor include any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after Purchasers’ Registrable Securities in such underwriting unless the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if Purchasers accept the underwriter advises the Holder in writing that marketing factors require a limitation terms of the underwriting as agreed upon between the Company and its underwriters, and then only in such quantity as the underwriters in their sole discretion determine will not jeopardize the success of the offering by the Company. If the total number of shares to be underwrittensecurities, the number of Shares held including Registrable Securities, requested by the Holder Purchaser to be included in such underwriting offering exceeds the number of securities to be sold (other than by the Company) that the underwriters in their reasonable discretion determine is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, which the underwriters and the Company in their sole discretion determine will not jeopardize the success of the offering. If the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated among the selling Purchasers in proportion (as nearly as practicable to) the number of Registrable Securities owned by each selling Purchaser or in such other proportions as shall mutually be agreed to by all such selling Purchasers. Notwithstanding the foregoing, in no event shall the number of Registrable Securities included in the offering be reduced unless all other securities, securities (other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and sold by the Company, ) are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with have the right to terminate or withdraw any registration initiated by it under this Subsection 7.6 before the effective date of such registration, filing whether or qualification not any Purchaser has elected to include Registrable Securities in such registration. It shall be a condition precedent to the obligations of the Shares Company to take any action pursuant to this Section 7.6 with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements Registrable Securities of one counsel for the any selling Holders selected by them.
(iii) The Company Purchaser that such Purchaser shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking furnish to the Company that such Holder intends to exercise information regarding itself, the Warrant for at least Registrable Securities held by it, and the number intended method of Shares to be included in such piggy-back offering prior to the consummation disposition of such piggy-back offering. The Company shall use its reasonable best efforts securities as is reasonably required to register or qualify effect the Shares for offer or sale under the state securities or Blue Sky laws registration of such states which the Holders of such Shares shall designatePurchaser’s Registrable Securities.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.
Appears in 2 contracts
Samples: Preferred Stock and Warrant Purchase Agreement (Lime Energy Co.), Preferred Stock and Warrant Purchase Agreement (Lime Energy Co.)
Registration Rights. (a) The Company shall file a registration statement If any Pledged Subsidiary at any time or from time to time proposes to register any of its securities under the Securities Act covering of 1933, the resale Company will at each such time give notice to the Agent of all Shares such Pledged Subsidiary's intentions so to do. Upon the request of the Holder as soon as practicable following the Holder’s written request to do soAgent given 30 days after receipt of such notice, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for will cause all Pledged Stock of such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder Pledged Subsidiary to be included in the registration statement proposed to be filed, all to the extent requisite to permit the public sale or other public disposition of such underwriting shall not be reduced unless all other securities are first entirely excluded from Pledged Stock so registered by the underwritingholders thereof. The costs and expenses of all such registrations and qualifications under said Act shall be paid by the Company shall bear or such Pledged Subsidiary, except that underwriting discounts and pay all expenses incurred commissions in connection with respect of any registration, filing or qualification of the Shares with respect to the registrations Pledged Stock sold pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares shall be borne by the sellers thereof. As expeditiously as they may request in writing.
(ii) The Company shall permit, or shall cause possible after the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities effective date of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offeringstatement, the Company will have no obligation deliver in exchange for any certificates representing shares of Pledged Stock so registered pursuant to proceed with such registration, which bear any restrictive legend, new Pledged Stock certificates not bearing such legend or any similar legend. In the offering event of the Piggy-back Shares.
(i) To the fullest extent permitted by lawany such registration, the Company will hereby agrees to indemnify and hold harmless each Holder, the partners, members, officers, directors Agent and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (the Lenders as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning pledgee of the Securities Act or the Exchange Act, Pledged Stock against any Violation (as defined herein below) losses, claims, damages or liabilities to which the Agent and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action Lenders may become subject to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, damages or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a any material fact contained in any such registration statement, including and any preliminary prospectus or final prospectus contained therein filed prospectus, or in any amendments amendment or supplements supplement thereto, (ii) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, therein or necessary to make the statements therein not misleading, and will reimburse the Agent and the Lenders for any legal or (iii) other expenses reasonably incurred by the Agent and the Lenders in connection with investigating or defending any violation such loss, claim, damage or alleged violation by any other party heretoliability. The indemnifications contained in this paragraph shall include each person, of if any, who controls the Securities Act, the Exchange Act, any state securities law Agent or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawLender.
Appears in 2 contracts
Samples: Pledge Agreement (Oxford Automotive Inc), Pledge Agreement (Prudenville Manufacturing Inc)
Registration Rights. (a) The Company shall file agrees that if at any time hereafter the Company files with the Securities and Exchange Commission ("Commission") a registration statement ("Registration Statement") under the Securities Act covering on a form suitable for registering the resale of all Shares issuable upon exercise of the Holder as soon as practicable following the Holder’s written request to do soWarrants (other than on Form X-0, X-0, or comparable registration statement, and use its reasonable best efforts to have the other than any registration statement which has been declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter Commission prior to the date hereof or has been filed with the Commission prior to the date hereof but has not yet been declared effective), it will be selected by the Company and shall be reasonably acceptable give written notice to such effect to the Holder, at least 30 days prior to such filing, and, at the written request of the Holder, made within 10 days after the receipt of such notice, will include therein at the Company's cost and expense (except for the fees and expenses of counsel to the Holder and underwriting discounts and commissions attributable to the Shares of Warrant Common Stock [as hereinafter defined] included therein) such of the Shares of Warrant Common Stock held by the Holder as it shall request. The Holder shall (together with If the registration is an underwritten primary registration on behalf of the Company, and the managing underwriter(s) advise the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwrittenin their good faith opinion, based upon market conditions, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such registration exceeds the number which can be sold in such offering. The , the Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to will include in such registration (i) first, the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to securities the Company that such Holder intends proposes to exercise sell, (ii) second, the Warrant for at least the number of Shares Common Stock requested to be included in such piggy-back offering prior registration and other securities requested to be included in such registration pursuant to contractual arrangements between Company and such other security holders ("Registration Rights Holders"), pro rata among the consummation holders of the Warrant Common Stock and the Registration Rights Holders on the basis of the number of securities requested to be included in such piggy-back offeringregistration by such holders and the Registration Rights Holders, and (iii) third, other securities requested to be included in such registration. The Company shall use Company, at its reasonable best efforts own expense, will cause the prospectus included in such Registration Statement to register or qualify meet the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning requirements of the Securities Act or for such period of time, not exceeding 180 days, as may be necessary to effect the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent sale of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall Shares included at the Company be liable in any such case for any such loss, claim, damage, liability, or action to request of the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses"Warrant Common Stock" shall mean the Shares issuable and issued pursuant to this Warrant Agreement and all other Warrants originally granted to First Cambridge and/or its officers as contemplated in the second recital hereof and pursuant to all Warrants issued upon transfer, claims, damagesdivision, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damagescombination of, or liabilities (or actions in respect substitution for, any thereof) arise out of or are based upon any . The rights of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement Holder under this Section 14 shall apply to an unlimited number of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) offerings proposed by the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawCompany.
Appears in 2 contracts
Samples: Common Stock Purchase Warrant Agreement (Emerson Radio Corp), Common Stock Purchase Warrant Agreement (Emerson Radio Corp)
Registration Rights. Within thirty (a30) The days following the Closing Date, the Company shall prepare and file with the U.S. Securities and Exchange Commission (“SEC”) a registration statement under the Securities Act covering the resale of all Shares of the Holder as soon as practicable following the Holder’s written request to do so, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement Registrable Securities under the Securities Act (including, without limitation, relating to for an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received be made on a continuous basis pursuant to include such number of Shares Rule 415 (the “Piggy-back SharesRegistration Statement”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best commercial efforts to register or qualify cause such Registration Statement to be declared effective by the Shares for offer or sale SEC as soon as practicable, and shall use its reasonable commercial efforts to keep each Registration Statement continuously effective under the state securities or Blue Sky laws Securities Act until the earlier of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To such time as all of the fullest extent permitted Registrable Securities covered by lawsuch Registration Statement have been publicly sold by the Investor or (ii) the date that all Registrable Securities covered by such Registration Statement may be sold pursuant to Rule 144 in transactions in which the requirements of paragraph (c)(1) thereof do not apply, as determined by counsel to the Company will indemnify pursuant to a written opinion letter to such effect, addressed and hold harmless acceptable to the Company’s transfer agent. The Company shall ensure that each Holder, the partners, members, officers, directors Registration Statement (including any amendments or supplements thereto and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement prospectuses contained in this Section 19(c)(itherein) shall not apply to amounts paid in settlement of contain any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission omit to state therein a material fact required to be stated therein, or necessary to make the statements therein (in the case of prospectuses, in the light of the circumstances in which they were made) not misleading. The Company shall promptly notify the Investor of the effectiveness of the Registration Statement. The Investor agrees to promptly furnish to the Company a completed and executed Selling Stockholder Questionnaire. All expenses (other than underwriting discounts, or selling commissions, stock transfer taxes, and fees and disbursements of counsel for the Investor) incurred by the Company in connection with the registration and the filing of the Registration Statement pursuant to this Section 4 shall be borne and paid by the Company. The term “Registrable Securities” means (iiii) any violation or alleged violation by any other party heretothe shares of common stock, par value $0.001 per share (“Common Stock”), of the Securities ActCompany issuable or issued upon conversion of the Investor’s Series J Preferred Stock; and (ii) any Common Stock issued as a dividend or other distribution with respect to, or in exchange for or in replacement of, the Exchange Actshares referenced in clause (i); provided, any state securities law that the Investor has completed and delivered to the Company a Selling Stockholder Questionnaire; and provided, further, that the Investor’s shares of Common Stock shall cease to be Registrable Securities upon the earliest to occur of the following: (A) sale pursuant to a Registration Statement or any rule or regulation promulgated Rule 144 under the Securities ActAct (in which case, only such security sold shall cease to be a Registrable Security); or (B) such security first becoming eligible for sale by the Exchange Act or any state securities lawInvestor pursuant to Rule 144 in a transaction in which the requirements of paragraph (c)(1) thereof do not apply.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Navidea Biopharmaceuticals, Inc.), Stock Purchase Agreement (Navidea Biopharmaceuticals, Inc.)
Registration Rights. A. On or after the occurrence of an event permitting exercise of the Option pursuant to paragraph 2 hereof, the Company shall, at the request of the Purchaser (awhether on its own behalf or on the behalf of any subsequent holder of this Option (or part thereof) The Company shall or any of the Option Shares issued pursuant hereto), promptly prepare, file and keep current a registration statement governing this Option if required under the Securities Act covering of 1933 (the resale of all Shares of the Holder as soon as practicable following the Holder’s written request "Securities Act") governing this Option and any shares issued and issuable pursuant to do so, this Option and shall use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in cause such registration statement such number to become effective and remain current in order to permit the sale or other disposition of this Option and any Option Shares as they may request issued upon total or partial exercise of this Option in writing.
(ii) The Company shall permitaccordance with any plan of disposition adopted by the Purchaser, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, except that the Company shall not be required to honor any maintain the effectiveness of such request that is received registration statement for more than sixty (60) days after the proper giving 90 days. The Purchaser, together with any subsequent holder of the Option, shall have the right to demand in the aggregate two such registrations. In connection with each such registration, the Company shall use its best efforts to cause to be delivered to the Purchaser (and any other holder whose Option or Option Shares are the subject of such registration) such certificates, opinions, accountants' letters and other documents as the Purchaser (or such subsequent holder) shall reasonably request. All expenses incurred by the Company in complying with the provisions of this paragraph 5, including without limitation, all registration and filing fees, printing fees and disbursements of counsel for the Company and blue sky fees and expenses shall be paid by the Company’s notice , except that all underwriting discounts and selling commissions applicable to the sales and all fees and disbursements for counsel for the Purchaser shall be paid by the Purchaser and/or the holder whose Option or Option Shares are the subject of such registration.
B. On or after the Expiration Date. Notwithstanding occurrence of any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation event permitting exercise of the number Option pursuant to paragraph 2 hereof, each time the Company shall determine to proceed with the actual preparation and filing of shares to be underwrittena registration statement under the Securities Act in connection with the proposed offer and sale for money of any of its securities (other than in connection with a dividend reinvestment, employee stock purchase, stock option or similar plan or a registration statement on Form S-4) by it or any of its security holders, the number Company will give written notice of Shares held by its determination to the Holder Purchaser. Upon the written request of the Purchaser given with 10 days after receipt of any such notice from the Company, the Company will cause all securities which the Purchaser shall request to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested statement contemplated by this subparagraph B to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurredregistration statement; provided, however, that nothing herein shall prevent the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of Company from, at any time, abandoning or delaying any such lossregistration; provided further, claimhowever, damagethat if the Company determines not to proceed with a registration after the registration statement has been filed with the Securities and Exchange Commission, liability, or action if such settlement is effected without the consent Company shall promptly complete the registration for the benefit of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall Purchaser if the Purchaser agrees to bear all incremental expenses incurred by the Company be liable in any such case for any such loss, claim, damage, liability, or action to as the extent that it arises out result of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by after the Company has decided not to proceed. If any such Holder, underwriter, controlling person registration pursuant to this subparagraph B shall be underwritten in whole or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Actin part, the Exchange Act or other federal or state law, insofar Purchaser may require that any securities requested for inclusion pursuant to this subparagraph B be included in the underwriting on the same terms and conditions as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawotherwise being sold through underwriters.
Appears in 2 contracts
Samples: Merger Agreement (Chittenden Corp /Vt/), Merger Agreement (Chittenden Corp /Vt/)
Registration Rights. (a) The Company shall shall, within fifteen (15) Business Days after the Closing (the “Filing Deadline”), file with the Commission (at the Company’s sole cost and expense) a registration statement under the Securities Act covering registering the resale of all the Subscribed Shares of (the Holder “Registration Statement”), and use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof, but no later than the earlier of (i) the 60th calendar day (or 120th calendar day if the Commission notifies the Company that it will “review” the Registration Statement) following the Holder’s written request to do soearlier of (A) the filing of the Registration Statement and (B) Filing Deadline and (ii) the 5th Business Day after the Company is notified (orally or in writing, and use its reasonable best efforts to have the registration statement declared effective whichever is earlier) by the SEC Commission that the Registration Statement will not be “reviewed” or will not be subject to further review (such date, the “Effectiveness Deadline”); provided, that (i) if the Effectiveness Deadline falls on a Saturday, Sunday or other day that the Commission is closed for distribution thereof by means of an underwriting. The underwriter will business, the Effectiveness Deadline shall be selected extended to the next Business Day on which the Commission is open for business and (ii) if the Commission is closed for operations due to a government shutdown, the Effectiveness Deadline shall be extended by the Company and shall be reasonably acceptable to same number of Business Days on which the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwritingCommission remains closed. Notwithstanding any other provision of this Section 19(a)the foregoing, if the underwriter advises Commission prevents the Holder in writing that marketing factors require a limitation Company from including any or all of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act by the applicable stockholders or otherwise, such Registration Statement shall register for resale such number of Shares shares of Common Stock which is equal to be underwrittenthe maximum number of shares as is permitted by the Commission. In such event, the number of Subscribed Shares and any other shares to be registered for each selling stockholder named in the Registration Statement shall be reduced pro rata among all such selling stockholders and as promptly as practicable after being permitted to register additional shares under Rule 415 under the Securities Act, the Company shall file one or more new Registration Statement(s) (such new Registration Statement shall also be deemed to be “Registration Statement” hereunder) to register such additional Subscribed Shares and cause such Registration Statement(s) to become effective as promptly as practicable after the filing thereof, but in any event no later than thirty (30) calendar days after the filing of such Registration Statement (the “Additional Effectiveness Deadline”); provided, that the Additional Effectiveness Deadline shall be extended to one hundred twenty (120) calendar days after the filing of such Registration Statement if such Registration Statement is reviewed by, and comments thereto are provided from, the Commission; provided, further the Company shall have such Registration Statement declared effective within ten (10) Business Days after the date the Company is notified (orally or in writing, whichever is earlier) by the staff of the Commission that such Registration Statement will not be “reviewed” or will not be subject to further review; provided, further that (i) if such day falls on a Saturday, Sunday or other day that the Commission is closed for business, the Additional Effectiveness Deadline shall be extended to the next Business Day on which the Commission is open for business and (ii) if the Commission is closed for operations due to a government shutdown, the Effectiveness Deadline shall be extended by the same number of Business Days on which the Commission remains closed. Any failure by the Company to file a Registration Statement by the Filing Deadline or to effect the Registration Statement by the Effectiveness Deadline or Additional Effectiveness Deadline shall not otherwise relieve the Company of its obligations to file or effect a Registration Statement as set forth in this Section 5. For purposes of this Section 5, the term “Company” shall refer to the Company and Planet on a combined basis following the closing of the Transaction.
(b) The Company’s obligation to include the Subscribed Shares in the Registration Statement are contingent upon Subscriber furnishing in writing to the Company such information regarding Subscriber, the securities of the Company held by Subscriber and the Holder intended method of disposition of the Subscribed Shares (which shall be limited to non-underwritten public offerings) as shall be reasonably requested by the Company to effect the registration of the Subscribed Shares, and shall execute such documents in connection with such registration as the Company may reasonably request that are customary of a selling stockholder in similar situations. Unless required under applicable laws and Commission rules, in no event shall the Subscriber be identified as a statutory underwriter in the Registration Statement; provided, that if the Subscriber is required to be included so identified as a statutory underwriter in such underwriting shall not be reduced unless all other securities are first entirely excluded the Registration Statement, the Subscriber will have an opportunity to withdraw its Subscribed Shares from the underwritingRegistration Statement. The Company agrees that, except for such times as the Company is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, the Company will use its commercially reasonable efforts to, at its expense, cause such Registration Statement to remain effective with respect to Subscriber, keep any qualification, exemption or compliance under state securities laws which the Company determines to obtain continuously effective with respect to Subscriber, and to keep the applicable Registration Statement or any subsequent shelf registration statement free of any material misstatements or omissions, until the earlier of (i) three years from the issuance of the Subscribed Shares, (ii) the date on which all of the Subscribed Shares shall have been sold, or (iii) on the first date on which the undersigned can sell all of its Subscribed Shares (or shares received in exchange therefor) under Rule 144 of the Securities Act without limitation as to the manner of sale, the amount of such securities that may be sold and without the requirement for the Company to be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable). The Company shall bear and pay all expenses incurred in connection with any registration, filing be entitled to delay or qualification postpone the effectiveness of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filingRegistration Statement, and qualification feesfrom time to time to require Subscriber not to sell under the Registration Statement or to suspend the effectiveness thereof, printers and accounting fees relating if the negotiation or apportionable thereto consummation of a transaction by the Company or its subsidiaries is pending or an event has occurred, which negotiation, consummation or event the Company’s board of directors reasonably believes, upon the advice of legal counsel, would require additional disclosure by the Company in the Registration Statement of material information that the Company has a bona fide business purpose for keeping confidential and the fees and disbursements non-disclosure of one counsel for which in the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) thatRegistration Statement would be expected, in the event reasonable determination of the Company proposes Company’s board of directors, upon the advice of legal counsel, to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of Registration Statement to fail to comply with applicable disclosure requirements (such circumstance, a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back SharesSuspension Event”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein); provided, however, that the Company shall may not be required to honor any such request that is received delay or suspend the Registration Statement on more than three occasions or for more than sixty (60) days after consecutive calendar days, or more than ninety (90) total calendar days, in each case during any twelve-month period. Upon receipt of any written notice from the proper giving Company (which notice shall not contain any material non-public information regarding the Company) of the Company’s notice happening of any Suspension Event during the period that the Registration Statement is effective or after if as a result of a Suspension Event the Expiration Date. Notwithstanding Registration Statement or related prospectus contains any other provision untrue statement of this Section 19(b)(ii)a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, if the underwriter advises the Holder in writing that marketing factors require a limitation light of the number circumstances under which they were made (in the case of shares the prospectus) not misleading, Subscriber agrees that (i) it will immediately discontinue offers and sales of the Subscribed Shares under the Registration Statement (excluding, for the avoidance of doubt, sales conducted pursuant to be underwritten, Rule 144) until Subscriber receives copies of a supplemental or amended prospectus (which the number of Shares held Company agrees to promptly prepare) that corrects the misstatement(s) or omission(s) referred to above and receives notice that any post-effective amendment has become effective or unless otherwise notified by the Holder to be Company that it may resume such offers and sales, and (ii) it will maintain the confidentiality of any information included in such underwriting shall not be reduced written notice delivered by the Company unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and otherwise required by law or subpoena. If so directed by the Company, are first entirely excluded from Subscriber will deliver to the underwritingCompany or, and unless in Subscriber’s sole discretion destroy, all copies of the number prospectus covering the Subscribed Shares in Subscriber’s possession; provided, however, that this obligation to deliver or destroy all copies of Other Sharesthe prospectus covering the Subscribed Shares shall not apply (i) to the extent Subscriber is required to retain a copy of such prospectus (a) in order to comply with applicable legal, regulatory, self-regulatory or professional requirements or (b) in accordance with a bona fide pre-existing document retention policy or (ii) to copies stored electronically on the one hand, and Piggyarchival servers as a result of automatic data back-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offeringup. The Company Subscriber shall bear and pay all expenses incurred not in connection with the foregoing be required to execute any registration, filing lock-up or qualification of similar agreement or otherwise be subject to any contractual restriction on the Shares with respect ability to transfer the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Subscribed Shares.
(ic) To the fullest extent permitted by law, The Subscriber may deliver written notice (an “Opt-Out Notice”) to the Company will indemnify and hold harmless each Holder, requesting that the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and Subscriber not receive notices from the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred otherwise required by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurredSection 5(b); provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of Subscriber may later revoke any such loss, claim, damage, liability, or action if such settlement is effected without Opt-Out Notice in writing. Following receipt of an Opt-Out Notice from the consent of the Company Subscriber (which consent shall not be unreasonably withheld, delayed or conditionedunless subsequently revoked), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) the Company shall not deliver any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including notices to the Subscriber and the Subscriber shall no longer be entitled to the rights associated with any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, such notice and (ii) each time prior to the omission Subscriber’s intended use of an effective Registration Statement, the Subscriber will notify the Company in writing at least two (2) Business Days in advance of such intended use, and if a notice of a Suspension Event was previously delivered (or alleged omission would have been delivered but for the provisions of this Section 5(c)) and the related suspension period remains in effect, the Company will so notify the Subscriber within one (1) Business Day of the Subscriber’s notification to the Company by delivering to the Subscriber a copy of such previous notice of Suspension Event, and thereafter will provide the Subscriber with the related notice of the conclusion of such Suspension Event promptly following its availability.
(d) In the case of the registration effected by the Company pursuant to this Subscription Agreement, the Company shall, upon reasonable request, inform Subscriber as to the status of such registration. The Company shall advise Subscriber within five (5) Business Days:
(i) when a Registration Statement or any amendment thereto has been filed with the Commission and when such Registration Statement or any post-effective amendment thereto has become effective;
(ii) of the issuance by the Commission of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for such purpose;
(iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Subscribed Shares included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and
(iv) subject to the provisions in this Subscription Agreement, of the occurrence of any event that requires the making of any changes in any Registration Statement or prospectus so that, as of such date, the statements therein are not misleading and do not omit to state therein a material fact required to be stated therein, therein or necessary to make the statements therein (in the case of a prospectus, in the light of the circumstances under which they were made) not misleading. Notwithstanding anything to the contrary set forth herein, the Company shall not, when so advising Subscriber of such events, provide Subscriber with any material, nonpublic information regarding the Company other than to the extent that providing notice to Subscriber of the occurrence of the events listed in (i) through (iv) above may constitute material, nonpublic information regarding the Company.
(e) The Company shall use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement as soon as reasonably practicable.
(f) Except for such times as the Company is permitted hereunder to suspend, and has suspended, the use of a prospectus forming part of a Registration Statement as contemplated by this Subscription Agreement, the Company shall use its commercially reasonable efforts to as soon as reasonably practicable prepare a post-effective amendment to such Registration Statement or a supplement to the related prospectus, or (iii) any violation or alleged violation by file any other party heretorequired document so that, as thereafter delivered to purchasers of the Securities ActSubscribed Shares included therein, such prospectus will not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(g) The Company shall use its commercially reasonable efforts to cause all Subscribed Shares to be listed on each securities exchange or market, if any, on which the Common Stock have been listed.
(h) The Company shall use its commercially reasonable efforts to take all other steps necessary to effect the registration of the Subscribed Shares required hereby.
(i) For purposes of this Section 5, “Subscribed Shares” shall mean, as of any date of determination, the Exchange ActSubscribed Shares and any other equity security issued or issuable with respect to the Subscribed Shares by way of share split, dividend, distribution, recapitalization, merger, exchange, replacement or similar event, and “Subscriber” shall include any state securities law or any rule or regulation promulgated affiliate of the undersigned Subscriber to which the rights under the Securities Act, the Exchange Act or any state securities lawthis Section 5 shall have been duly assigned.
Appears in 2 contracts
Samples: Subscription Agreement (dMY Technology Group, Inc. IV), Subscription Agreement (dMY Technology Group, Inc. IV)
Registration Rights. (a) The Company shall agrees that, within thirty (30) calendar days after the Transaction Closing (the “Filing Date”), the Company will file with the SEC (at the Company’s sole cost and expense) a registration statement under the Securities Act covering registering the resale of all the Shares of (the Holder initial registration statement and any other registration statement that may be filed by the Company under this Section 6, the “Registration Statement”), and the Company shall use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof but no later than the earlier of (i) the 60th calendar day (or 90th calendar day if the SEC notifies the Company that it will “review” the Registration Statement) following the Holder’s written request to do soTransaction Closing and (ii) the 10th business day after the date the Company is notified (orally or in writing, and use its reasonable best efforts to have the registration statement declared effective whichever is earlier) by the SEC that the Registration Statement will not be “reviewed” or will not be subject to further review (such earlier date, the “Effectiveness Deadline”); provided, that if such day falls on a Saturday, Sunday or other day that the SEC is closed for distribution thereof business, the Effectiveness Deadline shall be extended to the next business day on which the SEC is open for business; and provided further, that if the SEC is closed on a business day (whether by means reason of an underwriting. The underwriter will government shutdown, government order, health protocol or otherwise), the Effectiveness Deadline shall be selected extended by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for same number of such underwritingbusiness days. Notwithstanding any other provision of this Section 19(a)the foregoing, if the underwriter advises SEC or its staff prevents the Holder in writing that marketing factors require a limitation Company from including any or all of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of shares of Common Stock by the applicable stockholders or otherwise, such Registration Statement shall register for resale such number of Shares which is equal to the maximum number of Shares as is permitted by the SEC or its staff. In such event, the number of Shares to be underwritten, registered for each selling stockholder named in the number of Shares held by the Holder to be included in such underwriting Registration Statement shall not be reduced unless pro rata among all other securities are first entirely excluded from the underwriting. The Company shall bear such selling stockholders and pay all expenses incurred in connection with any registration, filing or qualification of the as promptly as practicable after being permitted to register additional Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under Rule 415 under the Securities Act (includingAct, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall amend the Registration Statement or file a new Registration Statement to register such Shares not included in each case give prompt written notice of the Registration Statement and cause such proposed filing amendment or Registration Statement to become effective as promptly as practicable. In no event shall the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before Subscriber be identified as a statutory underwriter in the proposed filing date andRegistration Statement unless requested by the SEC; provided that if the SEC requests that Subscriber be identified as a statutory underwriter in the Registration Statement, by such notice, shall offer to such Holders the Subscriber will have an opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded withdraw from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offeringRegistration Statement. The Company shall use its commercially reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering provide a draft of the Piggy-back Shares.
Registration Statement to the Subscriber for review at least two (i2) To Business Days in advance of filing the fullest extent permitted by lawRegistration Statement; provided that, for the Company will indemnify and hold harmless each Holderavoidance of doubt, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor no event shall the Company be liable in any required to delay or postpone the filing of such case for any such loss, claim, damage, liability, or action to the extent that it arises out Registration Statement as a result of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned personthe Subscriber’s review. The term Company agrees that it will use its commercially reasonable efforts to cause such Registration Statement or another registration statement (which may be a “Violationshelf” means losses, claims, damages, or liabilities (joint or severalregistration statement) to which a party hereto may become subject under remain effective as to the Securities ActSubscriber until the earliest (such earliest date, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof“Effectiveness Expiration”) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement two (2) years from the date of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements theretoeffectiveness of the initial Registration Statement, (ii) the omission or alleged omission date on which the Subscriber ceases to state therein a material fact required to be stated therein, or necessary to make hold the statements therein not misleadingShares covered by such Registration Statement, or (iii) any violation or alleged violation by any other party hereto, the first date on which the Subscriber can sell all of its Shares under Rule 144 of the Securities ActAct without restriction, including any volume and manner of sale restrictions which may be applicable to affiliates under Rule 144 and without the requirement for the Company to be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable). The Subscriber agrees to disclose its beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, any state securities law or any rule or regulation promulgated under of the Securities ActShares to the Company upon request to assist the Company in making the determination described above. The Company’s obligations to include the Shares in the Registration Statement are contingent upon the Subscriber furnishing in writing to the Company such information regarding the Subscriber, the Exchange Act or any state securities law.of the Company beneficially owned by the Subscriber, the intended method of disposition of the Shares, and transactions and relationships with the
Appears in 2 contracts
Samples: Subscription Agreement (Environmental Impact Acquisition Corp), Subscription Agreement (Environmental Impact Acquisition Corp)
Registration Rights. (a) The Company Upon receipt after August 24, 1998 of a request by the holders of a majority of the Buyer Common Stock issued at the Initial Closing other than the Escrow Shares (the "Registrable Securities") to register such shares for resale, Buyer shall notify any other persons receiving shares at the Initial Closing of such request and permit such other persons to join in such registration. Within 30 days, Buyer shall file with the SEC a registration statement (the "Registration Statement") on Form S-3 or on such other form as is then available under the Securities Act covering the Registrable Securities; with respect to such shares, together with any shares held by persons who requested (within 10 business days of receipt of the notice set forth in the first sentence hereof) their shares to be included in such registration, and shall cause such shares of Buyer Common Stock to be registered under the Securities Act so as to permit the resale thereof, PROVIDED, HOWEVER, that each holder of Registrable Securities ("Holder") desiring to participate shall provide all such information and materials to Buyer and take all such action as may be reasonably required in order to permit Buyer to comply with all applicable requirements of the SEC and to obtain any desired acceleration of the effective date of such Registration Statement. Such provision of information and materials is a condition precedent to the obligations of Buyer pursuant to this Section 5.1. Buyer shall not be required to effect more than one registration under this Section 5.1. The offering made pursuant to such registration shall not be underwritten.
(b) Notwithstanding Section 5.1(a), Buyer shall be entitled to postpone the declaration of effectiveness of the Registration Statement prepared and filed pursuant to Section 5.1(a) for a reasonable period of time up to thirty (30) calendar days if the Board of Directors of Buyer, acting in good faith, determines that there exists material nonpublic information about Buyer which the Board does not wish to disclose in a registration statement, which information would otherwise be required by the Securities Act to be disclosed in the Registration Statement to be filed pursuant to Section 5.1(a) above. Buyer shall have the right to extend such 30-day postponement for up to 10 additional days; PROVIDED, HOWEVER, that Buyer will use all reasonable efforts to limit the initial postponement and any extension to as short a period as possible. In each case, Buyer shall furnish the Shareholders with a written notice summarizing in reasonable detail the material nonpublic information upon which the postponement or extension of such postponement is based, which information the Shareholders shall treat as confidential.
(c) Buyer shall (i) prepare and file with the SEC the Registration Statement in accordance with Section 5.1(a) hereof with respect to the shares of Registrable Securities desired for inclusion in the Registration Statement and shall use all reasonable efforts to cause the Registration Statement to become effective as promptly as practicable after filing and to keep the Registration Statement effective until one year after the Initial Closing Date; and (ii) prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith as may be necessary, and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Shares securities proposed to be registered in the Registration Statement until one year after the Initial Closing Date, (iii) furnish to each Holder such number of copies of any prospectus (including any preliminary prospectus and any amended or supplemented prospectus) in conformity with the requirements of the Holder as soon as practicable following the Holder’s written request to do soSecurities Act, and use its reasonable best efforts such other documents, as each Holder may reasonably request in order to have effect the registration statement declared effective offering and sale of the shares of the Registrable Securities to be offered and sold, but only while Buyer shall be required under the provisions hereof to cause the Registration Statement to remain current. In addition, unless such sales satisfy applicable exemptions, Buyer shall register or qualify the sale of the securities covered by the SEC for distribution thereof by means Registration Statement under the California Corporate Securities Law and under the Blue Sky laws of an underwriting. The underwriter will be selected by the Company and shall such other jurisdictions as may be reasonably acceptable to the requested by any Holder. The Holder shall .
(together with the Company as provided herein belowd) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a)5.1, if Buyer shall have the underwriter advises right at any time to require that all Holders suspend further open market offers and sales of Registrable Securities whenever, and for so long as, in the Holder reasonable judgment of Buyer in writing that marketing factors require a limitation of the number of Shares to good faith after consultation with counsel, there is or may be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing existence material undisclosed information or qualification of the Shares events with respect to Buyer (the registrations pursuant to this Section for each Holder"Suspension Right"). In the event Buyer exercises the Suspension Right, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel such suspension will continue for the selling Holders period of time reasonably necessary for disclosure to occur at a time that is not materially detrimental to Buyer and its stockholders or until such time as selected the information or event is no longer material, each as determined in good faith by them.
(i) The Company covenants and agrees Buyer after consultation with the counsel. Buyer will promptly give each Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include participating in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities notice of any such person are included therein; providedsuspension, howeversummarizing in reasonable detail the information or events on which such suspension is based, PROVIDED that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained participating in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) shall maintain the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, confidentiality of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.contents of such
Appears in 2 contracts
Samples: Stock Purchase Agreement (Vista Information Solutions Inc), Stock Purchase Agreement (Vista Information Solutions Inc)
Registration Rights. (a) The If at any time on or after the issuance of the Shares pursuant to this Subscription Agreement (the “Registrable Securities”) the Company shall proposes to file a any registration statement under the Securities Act covering (a “Registration Statement”) with respect to any offering of equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into, equity securities, by the resale of all Shares Company for its own account or for shareholders of the Holder Company for their account (or by the Company and by shareholders of the Company), other than a Registration Statement (i) filed in connection with any employee stock option or other benefit plan, (ii) for a dividend reinvestment plan or (iii) in connection with a merger or acquisition, then the Company shall (x) give written notice of such proposed filing to Subscriber as soon as practicable following but in no event less than ten (10) days before the Holder’s written request anticipated filing date of the Registration Statement, which notice shall describe the amount and type of securities to do sobe included in such Registration Statement, the intended method(s) of distribution, and use its reasonable best efforts the name of the proposed managing underwriter or underwriters, if any, of the offering, and (y) offer to have Subscriber in such notice the registration statement declared effective by opportunity to register the SEC for distribution thereof by means sale of an underwritingsuch number of Registrable Securities as Subscriber may request in writing within five (5) days following receipt of such notice (a “Piggy-Back Registration”). The Company shall cause such Registrable Securities to be included in such registration and shall cause the managing underwriter will or underwriters of a proposed underwritten offering to permit the Registrable Securities requested to be selected by included in a Piggy-Back Registration on the same terms and conditions as any similar securities of the Company and shall be reasonably acceptable to permit the Holder. The Holder shall (together sale or other disposition of such Registrable Securities in accordance with the Company as provided herein belowintended method(s) of distribution thereof. If Subscriber proposes to distribute its Registrable Securities through a Piggy-Back Registration that involves an underwriter or underwriters, then it shall enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision Piggy-Back Registration.
b) If a Piggy-Back Registration is initiated as a primary underwritten offering on behalf of this Section 19(a), if the Company and the managing underwriter advises the Holder Company and the holders of Registrable Securities (if any holders of Registrable Securities have elected to include Registrable Securities in such Piggy-Back Registration) in writing that marketing factors require a limitation of in its reasonable and good faith opinion the number of Shares to be underwritten, the number shares of Shares held by the Holder common stock proposed to be included in such underwriting shall not be reduced unless registration, including all Registrable Securities and all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification shares of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such common stock proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securitiesunderwritten offering, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless exceeds the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on shares of common stock which can be sold in such offering and/or that the number of Piggy-back Shares and Other Shares shares of common stock proposed to be included in any such registration or takedown would adversely affect the price per share of the common stock to be sold in such offering, the Company shall include in such registration (i) first, the shares of common stock that the Company proposes to sell; (ii) second, the shares of common stock requested to be included therein by Subscriber; and (iii) third, the shares of common stock requested to be included therein by holders of common stock other than holders of Registrable Securities, allocated among such holders in such offeringmanner as they may agree.
c) Subscriber may elect to withdraw such Subscriber’s request for inclusion of Registrable Securities in any Piggy-Back Registration by giving written notice to the Company of such request to withdraw prior to the effectiveness of the Registration Statement. The Company (whether on its own determination or as the result of a withdrawal by persons making a demand pursuant to written contractual obligations) may withdraw a Registration Statement at any time prior to the effectiveness of such Registration Statement. Notwithstanding any such withdrawal, the Company shall bear and pay all expenses incurred by Subscriber of Registrable Securities in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this such Piggy-Back Registration as provided in Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them9(f).
(iiid) The Company shall be obligated pursuant notify Subscriber of Registrable Securities at any time when a prospectus relating to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares Subscriber’s Registrable Securities is required to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject delivered under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damagesupon discovery that, or liabilities (or actions upon the happening of any event as a result of which, the prospectus included in respect thereof) arise out of or are based upon any of the following statementssuch Registration Statement, omissions or violations: (i) any untrue statement or alleged as then in effect, includes an untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission omits to state therein a any material fact required to be stated therein, therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing. At the request of Subscriber, the Company shall also prepare, file and furnish to Subscriber a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to Subscriber, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing. Subscriber shall not offer or sell any Registrable Securities covered by the Registration Statement after receipt of such notification until the receipt of such supplement or amendment.
e) The Company may request that Subscriber furnish the Company such information with respect to Subscriber and Subscriber’s proposed distribution of the Registrable Securities pursuant to the Registration Statement as the Company may from time to time reasonably request in writing or as shall be required by law or by the Securities and Exchange Commission (the “SEC”) in connection therewith, and such Subscriber shall furnish the Company with such information.
f) All fees and expenses incident to the performance of or compliance with this Agreement by the Company shall be borne by the Company whether or not any Registrable Securities are sold pursuant to a Registration Statement. The fees and expenses referred to in the foregoing sentence shall include, without limitation, (i) all registration and filing fees (including, without limitation, fees and expenses of the Company’s counsel and independent registered public accountants) (A) with respect to filings made with the SEC, (B) with respect to filings required to be made with any trading market on which the common stock is then listed for trading, (C) in compliance with applicable state securities or Blue Sky laws reasonably agreed to by the Company in writing (including, without limitation, fees and disbursements of counsel for the Company in connection with Blue Sky qualifications or exemptions of the Registrable Securities) and (D) with respect to any filing that may be required to be made by any broker through which Subscriber of Registrable Securities intends to make sales of Registrable Securities with the Financial Industry Regulatory Authority, (ii) printing expenses, (iii) any violation messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the Company, (v) Securities Act liability insurance, if the Company so desires such insurance, and (vi) fees and expenses of all other persons or alleged violation entities retained by any other party hereto, the Company in connection with the consummation of the Securities Act, transactions contemplated by this Agreement. In no event shall the Exchange Act, Company be responsible for any state securities law broker or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawsimilar commissions of Subscriber.
Appears in 2 contracts
Samples: Subscription Agreement (Glimpse Group, Inc.), Subscription Agreement (Glimpse Group, Inc.)
Registration Rights. If, during any period when Buyer holds shares of the Series A Preferred Stock or common stock of the Company issued on conversion thereof (a) The the "Conversion Shares"), the Company shall file files a registration statement under the Securities Act covering the resale of all Shares of the Holder as soon as practicable following the Holder’s written request to do so, and use its reasonable best efforts to have the registration statement declared effective by the SEC register for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Dateits common stock, then the Company shall in each case give prompt at least 90 days' advance written notice to Buyer of its intent to file such registration statement. If so requested by Buyer within 30 days of the giving of such proposed filing written notice, to the Holder (extent then permissible under federal and any subsequent Holders applicable state securities laws, and the rules and regulations of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date andSecurities and Exchange Commission thereunder, by such notice, the Company shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no for Buyer's account all but not less favorable to the Holders as the terms and conditions applicable to securities than all of the Company included therein or as applicable to securities shares of the Conversion Shares then held by Buyer, except where the inclusion of any person other than the Company and the Holders or all of Piggy-back Buyer's Conversion Shares if the securities of any such person are included therein; provided, however, that the Company shall is not be required to honor any such request that is received more than sixty (60) days after the proper giving of permitted by the Company’s notice or after the Expiration Date's underwriter(s) based on bona fide market considerations. Notwithstanding any other provision The expense of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered except for the account expense of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the underwriters' or other hand, are cut back sales compensation which will be borne by Buyer on a pro rata basis based on in proportion to the number of Piggy-back shares transferred for Buyer's account as a portion of the total number of shares sold pursuant to the registration statement) will be borne by the Company. At the time of any registration pursuant to this Section 9, the Company and Buyer shall enter into any underwriting or other formal agreements containing such terms and provisions with respect to the marketing of such securities, indemnification and other related matters as may be reasonably required by the Company's underwriter(s) in any such registration. As a condition of the inclusion of the Conversion Shares and Other Shares in any such registration, Buyer agrees to furnish to the Company such information concerning Buyer as may be requested to be included in such offering. The by the Company shall bear and pay all expenses incurred as necessary in connection with any registration, filing the registration or qualification of the Conversion Shares with respect under federal and state securities laws. Prior to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees effective date of any such registration statement relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offeringConversion Shares, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless Buyer shall each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants enter into an agreement providing for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, reciprocal indemnification against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) and expenses resulting from any untrue statement or alleged untrue statement of a material fact contained in such a prospectus or related registration statement, including notification or the like or from any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a untrue statement of material fact required to be stated therein, therein or necessary to make the statements therein not misleading, based upon the information provided by it or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawon its behalf for use therein.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Regent Communications Inc), Stock Purchase Agreement (Regent Communications Inc)
Registration Rights. (a) The From and after the Settlement Date, Purchaser may deliver a written request to the Company, which request shall state (i) the aggregate number of Shares which are proposed to be sold in a public offering, (ii) whether such Shares will be disposed of through an underwriter (an "Underwritten Offering") or otherwise, and (iii) shall request that the Company shall file effect a registration statement under the Securities Act covering the resale of all Shares or part of the Holder as soon as practicable following Shares then owned by Purchaser. Upon receipt of such request, the Holder’s written request to do so, and Company will promptly use its reasonable best efforts to have effect the registration statement declared effective (the "Registration") under the Securities Act of the Shares which Purchaser has so requested to register so as to permit the disposition (in accordance with the intended methods thereof as aforesaid) by Purchaser of the SEC for distribution thereof by means of Shares so to be registered. If Purchaser requests an underwriting. The underwriter will be selected by Underwritten Offering, the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement with a managing underwriter selected by Purchaser and named in such request and with such other underwriters as Purchaser shall from time to time name, which agreement shall contain terms customary for a customary form with secondary distribution. The Company shall have the underwriter or right to approve any and all underwriters selected for such underwritingby Purchaser, which approvals shall not be unreasonably withheld. Notwithstanding any other provision For the purposes of Sections 9 through 13 of this Section 19(aAgreement, Shares shall also mean shares of Common Stock which become outstanding after the Settlement Date, and securities issued in respect of the Shares.
(b) If the managing underwriter for an Underwritten Offering notifies Purchaser that it is able to dispose of fewer Shares than the aggregate number which Purchaser has requested to be registered (such difference to be referred to as the "Undisposed Shares"), if the underwriter advises the Holder in writing that marketing factors require a limitation of then the number of Shares to be underwritten, the number registered on behalf of Shares held by the Holder to be included in such underwriting Purchaser shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by themsuch difference.
(ic) The Company covenants and agrees with Purchaser may make the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included thereinRegistration only once; provided, however, that in the Company shall not be required to honor any such event that an Underwritten Offering results in Undisposed Shares, then, Purchaser may subsequently request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered Registration pursuant to the registration rights granted in the 2008 SPA Section 9(a) one or (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out subsequent notice or notices are of or is based upon a Violation Underwritten Offerings which occurs resulted in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such HolderUndisposed Shares) more additional times, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or extent necessary to make register on behalf of Purchaser that number of Shares equal to the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of Undisposed Shares which resulted from the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawfirst Registration.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Zenith National Insurance Corp), Stock Purchase Agreement (Fairfax Financial Holdings LTD/ Can)
Registration Rights. (a) The Company shall agrees that it will -------------------- prepare and file a registration statement under the Securities Act covering the resale of all Shares of the Holder as soon as practicable following the Holder’s written request to do so, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a)Commission, if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than within sixty (60) days after the proper giving Closing Date, a Registration Statement, at the sole expense of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(iiCompany (except as provided below), if the underwriter advises the Holder in writing that marketing factors require respect of all Registrable Securities, so as to permit a limitation public offering and resale of the number of shares to be underwritten, Registrable Securities under the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by themAct.
(iiib) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify cause the Shares for offer or sale under Registration Statement to become effective within one-hundred-twenty (120) days from the state securities or Blue Sky laws Closing Date, or, if earlier, within five (5) days of SEC clearance to request acceleration of effectiveness. The Company will notify Investor of the effectiveness of the Registration Statement within one business day of such states which the Holders of such Shares shall designateevent.
(ivc) If the Company decides not to proceed with the piggy-back offering, the The Company will have no obligation to proceed with maintain the offering Registration Statement or post-effective amendment until the earlier of the Piggy-back Shares.
(i) To the fullest extent permitted by lawdate that all of the Registrable Securities have been sold pursuant to the Registration Statement, (ii) the date the Investor receives an opinion of counsel to the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(iRegistrable Securities may be sold under the provisions of Rule 144 without limitation as to volume, (iii) shall not apply all Registrable Securities have been otherwise transferred to amounts paid in settlement of any Persons who may trade such loss, claim, damage, liability, or action if such settlement is effected shares without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject restriction under the Securities Act, and the Exchange Act Company has delivered a new certificate or other federal or state law, insofar as evidence of ownership for such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of securities not bearing a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleadingrestrictive legend, or (iiiiv) all Registrable Securities may be 4 of 15 sold without any violation time, volume or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law manner limitations pursuant to Rule 144(k) or any rule or regulation promulgated similar provision then in effect under the Securities ActAct in the opinion of counsel to the Company.
(d) All fees, disbursements and out-of-pocket expenses and costs incurred by the Exchange Act or Company in connection with the preparation and filing of the Registration Statement and in complying with applicable securities and Blue Sky laws (including, without limitation, all attorneys' fees of the Company) shall be borne by the Company. The Investor shall bear the cost of underwriting and/or brokerage discounts, fees and commissions, if any, applicable to the Registrable Securities being registered and the fees and expenses of its counsel.
(e) No provision contained herein shall preclude the Company from selling securities pursuant to any state securities lawRegistration Statement in which it is required to include Registrable Securities pursuant to this Agreement.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Integral Technologies Inc /Cn/), Securities Purchase Agreement (Integral Technologies Inc /Cn/)
Registration Rights. The shares to be issued pursuant to subsection 2 of this Agreement shall contain unlimited piggyback registration rights. Consultant's piggyback registration rights shall commence one (a1) The year from the date hereof and shall terminate three (3) years after the Company shall file a registration statement under register any of its shares of common stock for sale pursuant to the Securities Act covering of 1933, as amended (the resale of all Shares of the Holder as soon as practicable following the Holder’s written request to do so, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a"Act"), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear the costs of such registrations. In the event of the sale of the shares contemplated hereunder, Consultant shall pay any and pay all underwriting commissions and non-accountable expenses incurred of any underwriter selected by Consultant to sell the common stock (the "Registrable Securities"), together with the expenses of any legal counsel selected by Consultant to represent Consultant in connection with any registration, filing or qualification the sale of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) Registrable Securities. The Company covenants agrees to use its prompt best efforts to cause the filing required herein to become effective and agrees with to qualify or register the Holder (and any subsequent Holders of this Warrant and/or Shares) thatRegistrable Securities in such states as are reasonably requested by the Consultant. As to Consultant's piggyback registration rights, in the event the Company proposes agrees to file a registration statement under qualify or register the Registrable Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date in such additional states as are reasonably requested by Consultant and on or before the Expiration Date, then the Company shall in each case give prompt written notice bear all costs and expenses, including reasonable counsel fees and expenses, of such proposed filing to the Holder (and any subsequent Holders qualification of this Warrant and/or Shares) at least sixty (60) days before registration of the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include Registrable Securities in such registration statement such number of Shares additional states as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held reasonably requested by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offeringConsultant. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have In no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor event shall the Company be liable required to register the Registrable Securities in any such case for any such loss, claim, damage, liability, more than five (5) states or action to the extent that it arises out of or is based upon in a Violation state in which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: would cause (i) any untrue statement or alleged untrue statement of a material fact contained the Company to be obligated to do business in such registration statementstate, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required principal stockholders of the Company to be stated thereinobligated to escrow any of their securities. In the event that Consultant shall request that the Company register the Registrable Securities in more than 5 states, or necessary the Company agrees to make cooperate with such request, but at the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, sole cost of the Securities ActConsultant, unless as part of a subsequent registration, the Exchange ActCompany determines that registration in states beyond the five, any state securities law or any rule or regulation promulgated under is in its own best interests. Notwithstanding the Securities Actprovisions contained in this paragraph 4, the Exchange Act or any state securities lawholders of the shares acquired pursuant to paragraph 2, will be permitted to avail themselves of the Rule 144, with regard to disposal of the shares.
Appears in 2 contracts
Samples: Financial and Strategic Consulting Agreement (Careertek Org Inc), Financial and Strategic Consulting Agreement (Careertek Org Inc)
Registration Rights. The Warrantholder shall have the following demand and piggyback registration rights, excluding registration statements filed under Commission Forms S-4 and S-8 and any successor forms thereto:
1. The Warrantholder (a) The or if there is more than one Warrantholder then the Warrantholders beneficially owning at least 66 2/3 % of the Warrant Shares represented hereby), shall have the right on two separate occasions to demand that the Company shall expeditiously file a registration statement under the Securities Act covering the resale of all Shares covering, all, but not less than all, of the Warrant Shares beneficially owned by such requesting Warrantholder. Each such demand may be made at any time after six (6) months from the Commencement Date, but in no event later than the Expiration Date. Should this registration be delayed by the Company, the period when such demand may be made will be extended for a period of time equal to the length of the delay in registering such securities. In connection with the first demand, the Company shall bear all expenses attendant to registering such securities (other than the cost of counsel to selling stockholders and underwriting discounts and commissions, except as prohibited by Blue sky laws) and in connection with the second demand, the holders will bear all such expenses.
2. If the Company shall intend to file a registration statement, then the Warrantholder and any successor Warrantholders and the initial Holder as soon as practicable and the first and second transferee of the Warrant Shares (it being acknowledged that no transferee of the Warrant Shares following the Holder’s written request second transfer shall be entitled to do sothe rights provided under this Section 4C(2), and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of that an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation affiliate of the number of Shares to be underwritten, the number of Shares held by the initial Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from deemed a transferee for this purpose) shall have the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of right to piggyback the Warrant Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event registration statement, provided that after the Company proposes delivers written notice by registered mail of its intention to file a registration statement under the Securities Act Act, the holders must respond affirmatively within thirty (including30) business days after delivery of such notice. In connection with this piggyback registration right, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice bear all expenses attendant to registering such securities (other than the cost of such proposed filing counsel to the Holder (selling stockholders and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date andunderwriting discounts and commissions, except as prohibited by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writingBlue sky laws).
(ii) The Company shall permit3. If, or shall cause in the sole judgment of the managing underwriter of a proposed any public offering to permitby the Company, the Holders from whom such written requests have been received to include such number amount of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration aforementioned piggyback rights granted of Section 4C(2) hereof shall be determined to be, in the 2008 SPA (aggregate, an amount which would adversely affect the “Other Shares”) and success of the Company's registration of its securities for its own account, then, as to the amount of Common Shares to be offered registered on behalf of persons other than the Company and the Warrant Shares to be included in the registration statement, such persons shall agree to delay the offer and sale of such Warrant Shares for a period of forty-five (45) days from the date of completion of the underwritten distribution of the securities being registered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that no other security holder may sell securities owned by it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawunderwritten offering.
Appears in 2 contracts
Samples: Warrant Agreement (Inmark Enterprises Inc), Warrant Agreement (Inmark Enterprises Inc)
Registration Rights. (a) The Company Upon or after the occurrence of a Triggering Event and upon receipt of a written request from Valley, Ramapo shall prepare and file a registration statement with the Securities and Exchange Commission and any state securities bureau, covering the Option and such number of Option Shares as Valley shall specify in its request, and Ramapo shall use its best efforts to cause such registration statement to be declared effective in order to permit the sale or other disposition of the Option and the Option Shares (it being understood and agreed that Valley will use reasonable efforts to effect any such sale or other disposition on a widely distributed basis), provided that Valley shall in no event have the right to have more than one such registration statement become effective and further provided that Ramapo shall have the right to delay for up to six months such registration if the Option Shares can and will be registered in connection with the filing of a Registration Statement on Form S-4 (or a successor form) by any person acquiring Ramapo. In connection with such filing, Ramapo shall use its best efforts to cause to be delivered to Valley such certificates, opinions, accountant's letters and other documents as Valley shall reasonably request and as are customarily provided in connection with registrations of securities under the Securities Act covering the resale of all Shares of the Holder 1933, as soon as practicable following the Holder’s written request to do so, and use its reasonable best efforts to have the registration statement declared effective amended. All expenses incurred by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together Ramapo in complying with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision provisions of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder4, including (without limitation) , all registration, filing, registration and qualification filing fees, printers and accounting fees relating or apportionable thereto and the printing expenses, fees and disbursements of one counsel for the selling Holders as selected Ramapo and blue sky fees and expenses shall be paid by them.
(i) The Company covenants Ramapo. Underwriting discounts and agrees with the Holder (commissions to brokers and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, dealers relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Option Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify Valley and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use Valley in connection with such registration shall be borne by Valley. In connection with such filing, Ramapo shall indemnify and hold harmless Valley against any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damagesdamages or liabilities, or liabilities (joint or several) , to which a party hereto Valley may become subject under the Securities Act, the Exchange Act or other federal or state lawsubject, insofar as such losses, claims, damages, damages or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement with respect to Ramapo or alleged untrue statement with respect to Ramapo of any material fact with respect to Ramapo contained in any preliminary or final registration statement or any amendment or supplement thereto, or arise out of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission with respect to state therein a material fact Ramapo required to be stated therein, therein or necessary to make the statements therein with respect to Ramapo not misleading; and Ramapo will reimburse Valley for any legal or other expense reasonably incurred by Valley in connection with investigating or defending any such loss, claim, damage, liability or (iii) action; provided, however, that Ramapo will not be liable in any violation case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged violation untrue statement or omission or alleged omission made in such preliminary or final registration statement or such amendment or supplement thereto in reliance upon and in conformity with written information furnished by or on behalf of Valley specifically for use in the preparation thereof concerning Valley or its plans or intentions. Valley will indemnify and hold harmless Ramapo to the same extent as set forth in the immediately preceding sentence but only with reference to written information specifically furnished by or on behalf of Valley concerning Valley or its plans or intentions for use in the preparation of such preliminary or final registration statement or such amendment or supplement thereto; and Valley will reimburse Ramapo for any legal or other expense reasonably incurred by Ramapo in connection with investigating or defending any such loss, claim, damage, liability or action. Notwithstanding anything to the contrary herein, no indemnifying party hereto, of the Securities Act, the Exchange Act, shall be liable for any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawsettlement effected without its prior written consent.
Appears in 2 contracts
Samples: Stock Option Agreement (Ramapo Financial Corp), Stock Option Agreement (Valley National Bancorp)
Registration Rights. (a) The Company In the event that the Grantee shall file desire to sell any of the Shares within three years after the purchase of such Shares pursuant hereto, and such sale requires, in the opinion of counsel to the Grantee, which opinion shall be reasonably satisfactory to the Grantor and its counsel, registration of such Shares under the Securities Act, the Grantor will cooperate with the Grantee and any underwriters in registering such Shares for resale, including, without limitation, promptly filing a registration statement under which complies with the Securities Act covering the resale requirements of all Shares of the Holder as soon as practicable following the Holder’s written request to do soapplicable federal and state securities laws, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter entering into an underwriting agreement with such underwriters upon such terms and conditions as are customarily contained in a customary form underwriting agreements with respect to secondary distributions; provided that the underwriter Grantor shall not be required to have declared effective more than two registration statements hereunder and shall be entitled to delay the filing or underwriters selected effectiveness of any registration statement for such underwriting. Notwithstanding up to 90 days if the offering would, in the judgment of the Board of Directors of the Grantor, require premature disclosure of any other provision material corporate development or material transaction involving the Grantor or interfere with any previously planned securities offering by the Grantor.
(b) If the Common Stock is registered pursuant to the provisions of this Section 19(a)9, if the underwriter advises the Holder in writing that marketing factors require a limitation Grantor agrees (i) to furnish copies of the number of registration statement and the prospectus relating to the Shares to be underwritten, the number of Shares held by the Holder to be included covered thereby in such underwriting numbers as the Grantee may from time to time reasonably request and (ii) if any event shall not occur as a result of which it becomes necessary to amend or supplement any registration statement or prospectus, to prepare and file under the applicable securities laws such amendments and supplements as may be reduced unless all other necessary to keep available for at least 90 days a prospectus covering the Common Stock meeting the requirements of such securities are first entirely excluded from laws, and to furnish the underwritingGrantee such numbers of copies of the registration statement and prospectus as amended or supplemented as may reasonably be requested. The Company Grantor shall bear and pay all expenses incurred in connection with any the cost of the registration, including, but not limited to, all registration and filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holderfees, including (without limitation) all registration, filingprinting expenses, and qualification feesfees and disbursements of counsel and accountants for the Grantor, printers and accounting fees relating or apportionable thereto and except that the Grantee shall pay the fees and disbursements of one counsel for its counsel, and the underwriting fees and selling Holders as selected by them.
(i) The Company covenants and agrees with commissions applicable to the Holder (and any subsequent Holders shares of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held sold by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offeringGrantee. The Company Grantor shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder(i) Grantee, the partners, members, officers, its affiliates and its officers and directors and stockholders each person who controls Grantee within the meaning of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities ActAct or Exchange Act and (ii) for such Holder each underwriter and each person, if any, person who controls such Holder or any underwriter within the meaning of the Securities Act or the Exchange ActAct (collectively, the "Underwriters") ((i) and (ii) being referred to as "Indemnified Parties") against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, liabilities or liabilities (joint or several) expenses, to which a party hereto the Indemnified Parties may become subject under the Securities Act, the Exchange Act or other federal or state lawsubject, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) and expenses arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a any material fact contained or incorporated by reference in such any registration statementstatement or prospectus filed pursuant to this paragraph, including any preliminary prospectus or final prospectus contained therein arise out of or any amendments or supplements thereto, (ii) are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the Grantor will not be liable in any such case to the extent that any such loss, liability, claim, damage or expense arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any such documents in reliance upon and in conformity with written information furnished to the Grantor by the Indemnified Parties expressly for use or incorporation by reference therein.
(c) The Grantee and the Underwriters shall indemnify and hold harmless the Grantor, its affiliates and its officers and directors and each person who controls Grantee within the meaning of the Securities Act or Exchange Act against any losses, claims, damages, liabilities or expenses to which the Grantor, its affiliates and its officers and directors may become subject, insofar as such losses, claims, damages, liabilities (or actions in respect thereof) and expenses arise out of or are based upon any untrue statement of any material fact contained or incorporated by reference in any registration statement filed pursuant to this paragraph, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (iii) any violation in each case to the extent, but only to the extent, that such untrue statement or alleged violation untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Grantor by any other party heretothe Grantee or the Underwriters, of the Securities Actas applicable, the Exchange Act, any state securities law specifically for use or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawincorporation by reference therein.
Appears in 2 contracts
Samples: Stock Option Agreement (Berkshire Hathaway Inc /De/), Stock Option Agreement (General Re Corp)
Registration Rights. (a) The Company shall file a registration statement under American Depository Receipts. On or before the Securities Act covering the resale of all Shares seven-month anniversary of the Holder as soon as practicable following Closing Date, the Holder’s written request Company agrees to do sohave in place a Level II American Depositary Receipts facility (“ADR” and "ADR Facility", and use its reasonable best efforts respectively) on NASDAQ or the New York Stock Exchange (NYSE). The Purchasers shall have the right to have the registration statement Shares (or any portion of them) and, once issued upon exercise of the Warrants, the Warrant Shares (or any portion of them) be converted into American Depositary Shares, at the Company’s expense, immediately following the completion of the implementation of the ADR Facility. At least 30 days prior to the formation of the ADR Facility, the Company will notify each Purchaser of its rights to have his Shares and Warrant Shares (if converted) be registered under the ADR Facility, and shall register such Shares and Warrant Shares under the ADR Facility at the election of the Purchasers. Implementation of ADR Facility shall be deemed completed when the Company’s Registration Statement filed with the Commission with respect to ADSs of the Company is declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwritingCommission. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification covenants to make reasonable commercial efforts to maintain the registration of the Ordinary Shares with respect through such ADR Facility, or to register and maintain an Alternative US Registration, in each case, , until the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements later of one counsel for the selling Holders as selected by them.
(i) The Company covenants the third anniversary following effectiveness thereof, and agrees with (ii) the Holder six-month anniversary of the exercise of the last of the Warrants (and provided that any subsequent Holders Warrants that expire prior to exercise shall, for purposes of this Warrant and/or Shares) sentence, be deemed to have been exercised six months prior to expiration). The Purchaser agrees that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities sole discretion of the Company included therein or as applicable to securities of and any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving shareholders of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of additional shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liabilityhave been issued to shareholders, or action which may be issued to shareholders in the extent that it arises out future, may be converted into American Depositary Shares, as part of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damagesthe completion of the implementation of the ADR Facility, or liabilities at any time thereafter. As used herein, an Alternative US Registration shall mean a registration of the Ordinary Shares (joint or severalincluding the Shares and Warrant Shares) to which a party hereto may become subject with effect for the benefit of the Purchaser at least as beneficial (as confirmed by the Purchaser Majority) as provided under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawADR Facility.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Medigus Ltd.), Securities Purchase Agreement (Medigus Ltd.)
Registration Rights. (a) The Company shall agrees that, within 30 calendar days after the Closing Date (such deadline, the “Filing Deadline”), the Company will use commercially reasonable efforts to submit or file with the Commission (at the Company’s sole cost and expense) a registration statement under the Securities Act covering registering the resale of all the Subscribed Shares eligible for registration, as determined as of two Business Days prior to such submission or filing (the Holder as soon as practicable following the Holder’s written request to do so“Registration Statement”), and the Company shall use its commercially reasonable best efforts to have the registration statement Registration Statement declared effective by no later than the SEC for distribution thereof by means earlier of an underwriting. The underwriter will be selected by (i) the Company 60th calendar day following the earlier of (A) the filing of the Registration Statement and shall be reasonably acceptable to (B) the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a)Filing Deadline, if the underwriter advises Registration Statement is reviewed by, and receives comments from, the Holder Commission, and (ii) the 10th Business Day after the date the Company is notified in writing by the Commission that marketing factors require the Registration Statement will not be “reviewed” or will not be subject to further review (such earlier date, the “Effectiveness Deadline”). The Company will use its commercially reasonable efforts to provide a limitation draft of the Registration Statement to Subscriber for review (but not comment) at least two Business Days in advance of submitting or filing the Registration Statement; provided that, for the avoidance of doubt, in no event shall the Company be required to delay or postpone the filing of such Registration Statement as a result of or in connection with Subscriber’s review. Notwithstanding the foregoing, if the Commission prevents the Company from including any or all of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Subscribed Shares by the applicable stockholders or otherwise, such Registration Statement shall register for resale such number of Subscribed Shares that is equal to be underwrittenthe maximum number of Subscribed Shares as is permitted by the Commission. In such event, the number of Subscribed Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted for each selling stockholder named in the 2008 SPA (the “Other Shares”) and securities to Registration Statement shall be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a reduced pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in among all such offering. The Company shall bear and pay all expenses incurred in connection with any registrationselling stockholders and, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts promptly as practicable after being permitted to register or qualify the additional Subscribed Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject Rule 415 under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission Company will use commercially reasonable efforts to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.submit
Appears in 2 contracts
Samples: Business Combination Agreement (Ascendant Digital Acquisition Corp.), Subscription Agreement (Ascendant Digital Acquisition Corp.)
Registration Rights. Prior to June 1, 1997, Apple shall enter into with Cornerstone a registration rights agreement ("Registration Rights Agreement") in form and substance agreeable to Cornerstone and Apple, providing, among other things, for the following with respect to Common Shares acquired by Cornerstone pursuant to this Share Purchase Option Agreement:
(a) The Company In the time periods and with the frequency described in Section 7(b) below, Apple shall file a and use its best efforts to cause to become effective, registration statement statements under the Securities Act Act, and all necessary qualifications or registrations under the securities laws covering the resale by Cornerstone of all Common Shares issued to Cornerstone hereunder (each, a "Registration Statement").
(b) A Registration Statement shall be filed within 60 days after (i) the first anniversary of the first purchase of Common Shares of the Holder as soon as practicable following the Holder’s written request to do so, Cornerstone and (ii) each subsequent anniversary if Cornerstone has acquired Common Shares which are not covered by a Registration Statement.
(c) Apple shall use its reasonable best efforts to maintain the effectiveness of each Registration Statement until the earlier of (i) such time as all of the Common Shares covered thereby have been issued to and sold by Cornerstone and (ii) such time as all of the registration statement declared effective Common Shares covered thereby may be resold by Cornerstone without restriction under the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and Securities Act.
(d) During any consecutive three month period, Cornerstone shall be prohibited, unless Apple shall otherwise consent thereto in writing, from selling more than 25% of the outstanding Common Shares, whether pursuant to a Registration Statement or otherwise, except in an underwritten public offering in which the managing underwriter is one reasonably acceptable to the Holder. The Holder Apple.
(e) All expenses of such Registration Statement shall be borne by Apple, other than (together with the Company as provided herein belowi) enter into an any underwriting agreement in a customary form with the underwriter discounts or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear commissions or transfer taxes and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitationii) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements expenses of all separate counsel for Cornerstone in excess of the reasonable fees and expenses of one separate counsel for retained by Cornerstone to (A) review the selling Holders Registration Statement as selected requested by themApple, (B) review or prepare information to be provided at Apple's request and (C) review documents and instruments to be executed by Cornerstone at the request of Apple.
(f) (i) The Company covenants and agrees with Cornerstone shall refrain from the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities sale of any person other than the Company and the Holders Common Shares for one or more periods of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after following written notice from Apple that the proper giving relevant Registration Statement is not then current, due to the existence of material non-public information disclosure of which would materially adversely affect the Company’s business interests of Apple, and prior to Cornerstone' receipt from Apple of written notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii)that such Registration Statement is again current, if the underwriter advises the Holder in writing provided that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting Cornerstone shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded precluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations effecting sales pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
clause (i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, more than ninety (90) days during any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law360-day period.
Appears in 2 contracts
Samples: Common Share Purchase Option Agreement (Cornerstone Realty Income Trust Inc), Common Share Purchase Option Agreement (Cornerstone Realty Income Trust Inc)
Registration Rights. (a) The Company As soon as practical following the Closing, but in any event within one hundred twenty (120) days after the Closing, EESI shall file a registration statement to register the Unrestricted Stock under the Securities Act covering for sale to the resale of all Shares public pursuant to a "shelf registration" on Form S-3 or other appropriate form, if Form S-3 is not available under Rule 415 of the Holder as soon as practicable following Act to qualify such securities under the Holder’s Act or if required any state "blue sky" laws. EESI will give written request notice to do so, and use its reasonable best efforts to have the Sellers of the "shelf registration" at least 15 days before the registration statement declared effective is filed. After receiving the notice of the "shelf" registration, each Seller will advise EESI in writing of the intended method of disposition of the Unrestricted Stock to be registered, as required for EESI to prepare the registration statement. Sellers recognize that the occurrence of certain corporate developments, including significant acquisitions, may result in the failure of the registration statement in which the Unrestricted Stock is registered to contain all information required in accordance with applicable law until an amendment or supplement is filed and made available to the holders of all such Unrestricted Stock. Sellers recognize that in such event, sales under the registration statement will be suspended until EESI files the amendments or supplements required by the next sentence. EESI agrees, as promptly as reasonably practicable, to prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable period required pursuant to the Holder. The Holder shall (together terms of this Agreement and comply with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation provisions of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares Act with respect to the registrations disposition of all Unrestricted Stock covered by such registration statement during such period in accordance with the intended methods of disposition by the holders thereof set forth in such registration statement. EESI shall keep such registration statement current and effective, until such time as all of the Unrestricted Stock may be sold by the Sellers at any time without restriction or pursuant to this Section for each Holder, including (without limitation) the provisions of Rule 144 or until such earlier date as all registration, filing, and qualification fees, printers and accounting fees relating of the shares registered pursuant to such registration statement shall have been sold or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by themotherwise transferred to a third party.
(ib) The Company covenants and agrees With respect to the registration of the Unrestricted Stock, EESI will, as expeditiously as possible furnish to the Sellers such number of prospectuses, including copies of preliminary prospectuses, prepared in conformity with the Holder requirements of the Act, and such other documents, as the Sellers may reasonably request in order to facilitate the public sale or other disposition of the securities to be sold by the Sellers.
(and any subsequent Holders of c) All expenses incurred by EESI in effecting the registrations provided for in this Warrant and/or Shares) thatSection 5.1 shall be paid by EESI, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for all registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the printing expenses, fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offeringEESI, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, audits incident to or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration required by any such Holder, underwriter, controlling person registration and expenses of complying with the securities or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out "blue sky" laws of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawjurisdictions.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Eastern Environmental Services Inc), Agreement and Plan of Reorganization (Eastern Environmental Services Inc)
Registration Rights. (a) The Company shall Upon or after the occurrence of a Triggering Event and upon receipt of a written request from United, Raritan shall, if necessary for the resale of the Option or the Option Shares by United, prepare and file a registration statement with the Securities and Exchange Commission and any state securities bureau covering the Option and such number of Option Shares as United shall specify in its request, and Raritan shall use its best efforts to cause such registration statement to be declared effective in order to permit the sale or other disposition of the Option and the Option Shares, provided that United shall in no event have the right to have more than one such registration statement become effective. In connection with such filing, Raritan shall use its best efforts to cause to be delivered to United such certificates, opinions, accountant's letters and other documents as United shall reasonably request and as are customarily provided in connection with registrations of securities under the Securities Act covering the resale of all Shares of the Holder 1933, as soon as practicable following the Holder’s written request to do so, and use its reasonable best efforts to have the registration statement declared effective amended. All expenses incurred by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together Raritan in complying with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision provisions of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder4, including (without limitation) , all registration, filing, registration and qualification filing fees, printers and accounting fees relating or apportionable thereto and the printing expenses, fees and disbursements of one counsel for the selling Holders as selected Raritan and blue sky fees and expenses shall be paid by them.
(i) The Company covenants Raritan. Underwriting discounts and agrees with the Holder (commissions to brokers and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, dealers relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Option Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify United and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use United in connection with such registration shall be borne by United. In connection with such filing, Raritan shall indemnify and hold harmless United against any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damagesdamages or liabilities, or liabilities (joint or several) , to which a party hereto United may become subject under the Securities Act, the Exchange Act or other federal or state lawsubject, insofar as such losses, claims, damages, damages or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a any material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein registration statement or any amendments amendment or supplements supplement thereto, (ii) the omission or alleged omission to state therein arise out of a material fact required to be stated therein, therein or necessary to make the statements therein not misleading; and Raritan will reimburse United for any legal or other expense reasonably incurred by United in connection with investigating or defending any such loss, claim, damage, liability or (iii) action; provided, however, that Raritan will not be liable in any violation case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged violation untrue statement of omission or alleged omission made in such preliminary or final registration statement or such amendment or supplement thereto in reliance upon and in conformity with written information furnished by or on behalf of United specifically for use in the preparation thereof. United will indemnify and hold harmless Raritan to the same extent as set forth in the immediately preceding sentence but only with reference to written information specifically furnished by or on behalf of United for use in the preparation of such preliminary or final registration statement or such amendment or supplement thereto; and United will reimburse Raritan for any legal or other party heretoexpense reasonably incurred by Raritan in connection with investigating or defending any such loss, of the Securities Actclaim, the Exchange Actdamage, any state securities law liability or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawaction.
Appears in 2 contracts
Samples: Stock Option Agreement (United National Bancorp), Stock Option Agreement (Raritan Bancorp Inc)
Registration Rights. (a) The Upon request of the Purchaser, the Company shall file will enter into a registration statement under rights agreement with the Securities Act covering Purchaser (the resale “Registration Rights Agreement”) containing customary terms and conditions satisfactory to the Purchaser, including, without limitation, (i) eight demand registrations for the Purchaser, (ii) an unlimited number of all Shares demand registrations on Form S-3 or successor short form (if available to the Company) for the Purchaser without any minimum transaction size or period between registrations, (iii) unlimited piggyback registration rights for the Purchaser and (iv) priority registration for the equity securities of the Holder as soon as practicable following the Holder’s written request to do so, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder Purchaser versus the registration rights, if any, granted to be included in such underwriting shall not be reduced unless all any other securities are first entirely excluded from stockholder of the underwriting. The Company shall bear and pay all Company.
(b) All expenses incurred in connection with any registrationthe negotiation, filing or qualification preparation and authorization of the Shares with respect Registration Rights Agreement and each registration pursuant to, and incident to the registrations pursuant to this Section for each HolderCompany’s performance of or compliance with the terms of the Registration Rights Agreement, including (without limitation) all registration, filing, registration and qualification filing fees, printers fees and accounting expenses of compliance with securities or blue sky laws, listing application fees, printing expenses, transfer agent’s and registrar’s fees, cost of distributing prospectuses in preliminary and final form as well as any supplements thereto, fees relating or apportionable thereto and disbursements of counsel for the Company and all accountants and other Persons retained by the Company and the reasonable fees and disbursements of one U.S. counsel for the selling Holders as selected by them.
Purchaser (i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of all such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the expenses being herein called “Piggy-back SharesRegistration Expenses”) in shall be borne by the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included thereinCompany; provided, howeverthat all underwriting discounts and commissions and transfer taxes, that if any, attributable to the sale of equity securities of the Company shall not be required to honor any included as Registration Expenses and shall be borne by the applicable seller of such request that is received more than sixty (60) days after the proper giving equity securities of the Company’s notice .
(c) The Purchaser may transfer all or after the Expiration Date. Notwithstanding any other provision portion of its registration rights under this Section 19(b)(ii), if 5.1 or the underwriter advises the Holder in writing that marketing factors require a limitation Registration Rights Agreement to any transferee of all or any portion of the number of shares to be underwrittenShares. After any such transfer and assignment, the number of Shares held by the Holder to be included in such underwriting Purchaser shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration retain its rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants under this Section 5.1 and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares Registration Rights Agreement with respect to all other equity securities of the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and Company owned by the fees and disbursements of one counsel for the selling Holders selected by themPurchaser.
(iiid) The Company shall be obligated pursuant not grant registration rights to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to any other equity holder of the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawPurchaser.
Appears in 2 contracts
Samples: Subscription Agreement (Frontier Group Holdings, Inc.), Subscription Agreement (Frontier Group Holdings, Inc.)
Registration Rights. (a) The Company shall agrees prior to the date of expiration of the Restricted Period, it will file with the SEC (at its sole cost and expense) a registration statement under the Securities Act covering registering the resale of all the Common Shares and the Warrant Shares (the “Registration Statement”) on behalf of the Holder Purchasers (or their Permitted Transferee(s)), and it shall use its commercially reasonable efforts to have the Registration Statement declared effective, respectively, as soon as practicable following after the Holder’s written request filing thereof. The Company agrees to do so, and use its reasonable best efforts to have the cause such Registration Statement or another shelf registration statement declared that includes the Common Shares and Warrant Shares, to remain effective by until the earliest of (i) the second anniversary of the Closing or (ii) the date on which the Purchasers (or their Permitted Transferee(s)) cease to hold any Common Shares, Common Warrants and Warrant Shares. In no event shall the Purchasers (or their Permitted Transferee(s)) be identified as statutory underwriters in the Registration Statement, unless in response to a comment or request from the staff of the SEC for distribution thereof by means of or another regulatory agency; provided, that if the SEC requests that the Purchasers (or their Permitted Transferee(s)) be identified as statutory underwriters in the Registration Statement, the Purchasers (or their Permitted Transferee(s)) will have an underwriting. The underwriter will be selected by opportunity to withdraw their Common Shares and Warrant Shares from the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwritingRegistration Statement. Notwithstanding any other provision of this Section 19(a)the foregoing, if the underwriter advises SEC prevents the Holder in writing that marketing factors require a limitation Company from including any or all of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Common Shares and Warrant Shares by the applicable stockholders or otherwise, such Registration Statement shall register for resale such number of Common Shares and Warrant Shares which is equal to be underwrittenthe maximum number of Common Shares and Warrant Shares as is permitted by the SEC. In such event, the number of Common Shares held by the Holder and Warrant Shares to be included registered for each selling stockholder named in such underwriting the Registration Statement shall not be reduced unless pro rata among all other securities are first entirely excluded from the underwritingsuch selling stockholders. The Purchasers (or their Permitted Transferee(s)) acknowledge and agree that the Company shall bear and pay all expenses incurred may suspend the use of any such registration statement if it determines that in connection with any registrationorder for such registration statement not to contain a material misstatement or omission, an amendment thereto would be needed, or if such filing or qualification use could materially affect a bona fide business or financing transaction of the Shares with respect to Company or would require premature disclosure of information that would adversely affect the registrations pursuant to this Section for each HolderCompany that would at that time not otherwise be required in a current, including (without limitation) all registrationquarterly, filingor annual report under the Exchange Act, and qualification feesprovided, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholderI) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall not so delay filing or so suspend the use of the Registration Statement for a period of more than ninety (90) consecutive days or more than a total of one hundred-twenty (120) calendar days in each case give prompt written notice any three hundred sixty (360) day period and (II) the Company shall use commercially reasonable efforts to make such Registration Statement available for the sale by the Purchasers (or their Permitted Transferee(s)) of such proposed filing securities as soon as practicable thereafter. The Company’s obligations to include the Common Shares and Warrant Shares for resale in the Registration Statement are contingent upon the Purchasers (or their Permitted Transferee(s)) furnishing in writing to the Holder Company such information regarding the Purchasers (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permittheir Permitted Transferee(s)), the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA Purchasers (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein belowtheir Permitted Transferee(s)) and the Company will pay intended method of disposition of such Common Shares and Warrant Shares, which shall be limited to each such Holdernon-underwritten public offerings, underwriter, controlling person or other aforementioned person, any legal or other expenses as shall be reasonably incurred requested by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent to effect the registration of such Common Shares and Warrant Shares, and shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any execute such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use documents in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto as the Company may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or reasonably request that are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement customary of a material fact contained selling stockholder in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawsimilar situations.
Appears in 2 contracts
Samples: Common Stock and Common Warrant Subscription Agreement (Aquila Tony), Common Stock and Common Warrant Subscription Agreement (Canoo Inc.)
Registration Rights. (a) The To the extent the Company shall file does not maintain an effective registration statement for the Warrant Shares and in the further event that the Company files a registration statement under with the Securities Act and Exchange Commission covering the resale sale of all Shares its shares of Common Stock (other than a registration statement on Form S-4 or S-8, or on another form, or in another context, in which such “piggyback” registration would be inappropriate), then, for a period of five (5) years from the commencement of sales of the Offering, the Company shall give written notice of such proposed filing to the Holder as soon as practicable following but in no event less than ten (10) days before the Holder’s written request anticipated filing date, which notice shall describe the amount and type of securities to do sobe included in such offering, the intended method(s) of distribution, and the name of the proposed managing underwriter or underwriters, if any, of the offering, and offer to the Holder in such notice the opportunity to register the sale of such number of shares of Warrant Shares as such Holder may request in writing within five (5) days following receipt of such notice (a “Piggyback Registration”). The Company shall cause such Warrant Shares to be included in such registration and shall use its commercially reasonable best efforts to have cause the registration statement declared effective by managing underwriter or underwriters of a proposed underwritten offering to permit the SEC for distribution thereof by means Warrant Shares requested to be included in a Piggyback Registration on the same terms and conditions as any similar securities of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to permit the Holder. The Holder shall (together sale or other disposition of such Warrant Shares in accordance with the Company as provided herein belowintended method(s) of distribution thereof. All Holders proposing to distribute their securities through a Piggyback Registration that involves an underwriter or underwriters shall enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwritingPiggyback Registration. Notwithstanding any other provision of this Section 19(a)Furthermore, if the underwriter advises the each Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held must provide such information as reasonably requested by the Holder Company (which information shall be limited to that which is required for disclosure under the Securities Act and the forms, rules and regulations promulgated thereunder) to be included in the registration statement timely or the Company may elect to exclude such underwriting shall not be reduced unless all other securities are first entirely excluded Holder from the underwriting. The registration statement.
b) In addition, to the extent the Company shall bear and pay all expenses incurred in connection with any registrationdoes not maintain an effective registration statement for the Warrant Shares, filing or qualification for a period of five (5) years from the commencement of sales of the Offering, the Holder shall be entitled to one (1) demand right for the registration of the Warrant Shares with respect at the Company’s expense (other than any underwriting discounts, selling commissions, share transfer taxes applicable to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filingsale of the Warrant Shares, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holder) and one (1) additional demand right for the registration of the Warrant Shares at the Holder’s expense (the “Demand Registration”). In the event of a Demand Registration, the Company shall use its commercially reasonable efforts to register the applicable Warrant Shares. All Holders as selected by them.
(i) The Company covenants and agrees of Warrant Shares proposing to distribute their securities through a Demand Registration that involves an underwriter or underwriters shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such Demand Registration. Furthermore, each Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event must provide such information as reasonably requested by the Company proposes (which information shall be limited to file a registration statement that which is required for disclosure under the Securities Act (includingand the forms, without limitation, relating rules and regulations promulgated thereunder) to an initial public offering of Company Common Stock be included in the registration statement timely or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will may elect to exclude such Holder from the registration statement.
c) Notwithstanding the foregoing, the registration rights described in this Section 5 shall be subject to limitations imposed by the Commission’s rules or comments of the Commission staff in connection with its review of the registration statement for any such resale registration. Moreover, notwithstanding the foregoing registration obligations of the Company, if the Company furnishes to the Holders requesting a Demand Registration a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its stockholders for a registration statement to either become effective on or after remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Initial Exercise Date and on Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or before (iii) render the Expiration DateCompany unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall in each case give prompt written notice of such proposed filing have the right to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer defer taking action with respect to such Holders the opportunity to include in such Demand Registration or withdraw a related registration statement such number for a period of Shares as they may request in writing.
not more than forty-five (ii45) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included thereincalendar days; provided, however, that the Company shall may not be required to honor any such request that is received invoke this right more than sixty twice in any twelve (6012) days after month period or during the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA twelve (the “Other Shares”12) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering month period prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designateTermination Date.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.
Appears in 2 contracts
Samples: Representative’s Purchase Warrant (Imperial Petroleum Inc./Marshall Islands), Representative’s Purchase Warrant (Imperial Petroleum Inc./Marshall Islands)
Registration Rights. If the Company proposes to register (including, for this purpose, a registration effected by the Company for stockholders other than Creditor) any of its securities under the Act in connection with the public offering of such securities solely for cash (other than in an Excluded Registration), the Company shall, at such time, promptly give Creditor notice of such registration. Upon the request of Creditor given within ten (10) days after such notice is given by the Company, the Company shall, subject to the provisions of subparagraph (b) below, cause to be registered all of the Underlying Shares that Creditor has requested to be included in such registration. The Company shall have the right to terminate or withdraw any registration initiated by it under this paragraph before the effective date of such registration. The expenses (other than Selling Expenses) of a registration effected by the Company shall be borne by the Company.
(a) The Company shall file a registration statement under If Creditor intends to distribute the Securities Act covering the resale of all Underlying Shares of the Holder as soon as practicable following the Holder’s written covered by its request to do so, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting, it shall so advise the Company as a part of its request made pursuant to this paragraph 6. The underwriter underwriter(s) will be selected by the Company and shall be reasonably acceptable Creditor, subject only to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation reasonable approval of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in Company.
(b) In connection with any registration, filing or qualification offering involving an underwriting of shares of the Shares with respect to the registrations Company's capital stock pursuant to this Section for each Holderparagraph 6, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor include any of Creditor's Underlying Shares in such request that is received more than sixty (60) days after underwriting unless Creditor accepts the proper giving terms of the Company’s notice or after underwriting as agreed upon between the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii)Company and its underwriters, if and then only in such quantity as the underwriter advises underwriters in their sole discretion determine will not jeopardize the Holder in writing that marketing factors require a limitation success of the offering by the Company. If the total number of shares to be underwrittensecurities, the number of Shares held including Underlying Shares, requested by the Holder stockholders to be included in such underwriting shall not be reduced unless all other securities, other than offering exceeds the number of securities to be registered sold (other than by the Company) that the underwriters in their reasonable discretion determine is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Underlying Shares, which the underwriters and the Company in their sole discretion determine will not jeopardize the success of the offering.
(c) It shall be a condition precedent to the obligations of the Company to take any action pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares this paragraph 6 with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements Underlying Shares of one counsel for the selling Holders selected by them.
(iii) The Company Creditor that Creditor shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking furnish to the Company that such Holder intends to exercise information regarding itself, the Warrant for at least Underlying Shares held by him, and the number intended method of Shares to be included in such piggy-back offering prior to the consummation disposition of such piggy-back offering. The Company shall use its reasonable best efforts securities as is reasonably required to register or qualify effect the Shares for offer or sale under the state securities or Blue Sky laws registration of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Creditor's Underlying Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.
Appears in 2 contracts
Samples: Acknowledgment of Debt Satisfaction and Full Release (Worldwide Strategies Inc), Acknowledgment of Debt Satisfaction and Full Release (Worldwide Strategies Inc)
Registration Rights. (a) The Company shall shall, if requested by the Acquiror, as expeditiously as possible file a registration statement on a form of general use and available for use by the Company under the Securities Act covering if necessary in order to permit or assist the resale of all Shares sale or other disposition of the Holder as soon as practicable following shares of the Holder’s written request Company Common Stock that have been acquired upon exercise of the Option in accordance with the intended method of sale or other disposition requested by the Acquiror. The Acquiror shall provide all information reasonably requested by the Company for inclusion in any registration statement to do so, and be filed hereunder. The Company will use its reasonable best efforts to have the cause such registration statement declared first to become effective and then to remain effective for such period not in excess of 270 days from the day such registration statement first becomes effective as may be reasonably necessary to effect such sales or other dispositions. The obligations of the Company hereunder to file a registration statement and to maintain its effectiveness may be suspended for one or more periods of time not exceeding 60 days in the aggregate if the Board of Directors of the Company shall have determined that the filing of such registration statement or the maintenance of its effectiveness would require disclosure of non-public information that would materially and adversely affect the Company. The first registration statement prepared under this Section 7 shall be at the Company's expense except for underwriting commissions and the fees and disbursements of the Acquiror's counsel attributable to the offering of the Company Common Stock by the SEC for distribution thereof by means of an underwritingAcquiror. The underwriter will preparation of a second registration statement may be selected requested and effected hereunder at the Acquiror's sole expense. In no event shall the Company be required to effect more than two registrations hereunder. The filing of any registration statement hereunder may be delayed for such period of time as may reasonably be required to facilitate any public distribution by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with of the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwritingCommon Stock. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held If requested by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred Acquiror in connection with any registration, filing or qualification of the Shares with respect Company will become a party to any underwriting agreement relating to the registrations pursuant sale of such shares, but only to this Section the extent of obligating itself in respect of representations, warranties, indemnities and other agreements customarily included in such underwriting agreements for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto parties similarly situated. In any such transaction the Company and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes Acquiror will also agree to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration indemnify each other on Form S-3 from any stockholder) customary terms with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, information provided by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writingparty.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.
Appears in 2 contracts
Samples: Merger Agreement (Fairchild Corp), Merger Agreement (Tel Save Holdings Inc)
Registration Rights. (a) The Company shall file a registration statement under the Securities Act covering the resale of all Shares of the Holder as soon as practicable following the Holder’s written request to do so, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable Subject to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision various provisions of this Section 19(a)paragraph, if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with at any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event time the Company proposes to file a registration statement register any of its Common Stock under the Securities Act (including, without limitation, relating to an initial in connection with the public offering of Company such securities solely for cash on a form that would also permit the registration of the Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class issuable upon exercise of security which becomes or which this Warrant (the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date"Warrant Stock"), then the Company shall in each case promptly give prompt Warrantholder written notice of such proposed filing determination, and the Company, subject to the Holder (and any subsequent Holders provisions of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such noticeparagraph 18, shall offer use its best efforts to such Holders cause to be registered under the opportunity to include in such registration statement such number Act all of Shares as they may request in writingthe Warrant Stock evidenced by this Certificate.
(iib) The Company shall permit, or shall cause the managing underwriter In connection with any offering involving an underwriting of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of shares being issued by the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provideddescribed in Paragraph 18(a) above, however, that the Company shall not be required under Paragraph 18(a) hereof to honor any include Holder's Warrant Stock in such request that is received more than sixty (60) days after underwriting unless it accepts the proper giving terms of the Company’s notice or after underwriting as agreed upon between the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii)Company and the underwriters selected by it, if and then only in such quantity as will not, in the underwriter advises the Holder in writing that marketing factors require a limitation written opinion of the underwriters, jeopardize the success of the offering by the Company. If the total number of shares to be underwritten, the number of Shares held by the Holder Warrant Stock to be included in such offering is an amount of securities that the underwriters state in their written opinion jeopardizes the success of the offering, the Company shall only be required to include in the offering so many of the shares of Warrant Stock as the underwriters opine (in writing) will not jeopardize the success of the offering, subject to the following provisions and exceptions:
(c) Except as provided in Paragraph 18(d) below, all limitations on the number of shares of Warrant Stock to be included in the applicable underwriting shall not be reduced unless all other securitiespro rata with respect to the number of shares of Warrant Stock reserved for issuance pursuant to outstanding Warrants of the same class as the Warrants represented by this Certificate. If Holder disapproves of the terms of any such underwriting, it may elect to withdraw therefrom by written notice to the Company and the underwriter, and any shares excluded or withdrawn from such underwriting shall be withdrawn from registration.
(d) Notwithstanding any provision to the contrary elsewhere herein; (i) if Directors and Officers of the Company elect to include any shares of Common Stock held by them in any registration effected by the Company as described in Paragraph 18(a) hereof, then such shares, subject to the underwriter's opinion and percentage limitations described in Paragraph (d)(ii) immediately following, shall be considered entitled to "piggyback registration" rights under Paragraph 18(c) hereof, and (ii) if the underwriter for an underwriting contemplated under Paragraph 18(a) hereof determines that marketing factors permit the registration of securities other than securities to be registered pursuant to those offered for the Company's account in such underwriting ("Piggybacked Securities"), the registration rights granted in elsewhere herein to the 2008 SPA (the “Other Shares”) and securities Holder shall apply to be offered for the account such number of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares registrable securities requested to be included in registered by such offering. The Company shall bear Directors and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by themOfficers.
(e) In connection with the preparation and filing of the Registration Statement, the Company agrees to (i) use its best efforts to cause such Registration Statement to become and remain effective until the Termination Date; (ii) prepare and file with the SEC such amendments and supplements to such Registration Statement as may be necessary to keep such Registration Statement effective until the Termination Date; (iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking furnish to the Company that Holder such Holder intends to exercise the Warrant for at least the number of Shares copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act of 1933, as amended (the "Act"), and such other documents as Holder may reasonably request in order to be included in such piggy-back offering prior to facilitate the consummation disposition of such piggy-back offering. The Company shall the shares of Common Stock; and (iv) use its reasonable best efforts to register or and qualify the Shares for offer or sale shares of Common Stock covered by such Registration Statement under the state such other securities or Blue Sky laws of such states which jurisdictions as shall be identified by the Holders warrant holders for the distribution of such Shares shall designatethe securities covered by the Registration Statement.
(ivf) If the Company decides not to proceed All expenses incurred in connection with the piggy-back offeringregistration, offering and distribution of the Company will have no obligation to proceed shares of Common Stock underlying this Warrant including fees and disbursements of counsel, shall be borne by the Company, including, without limitation, Securities and Exchange Commission filing fees, Blue Sky filing fees, printing costs, accounting fees costs, transfer agent fees, and any other miscellaneous costs and disbursements. Each Holder participating in the Registration shall be liable for any and all underwriting discounts, brokerage commissions or other fees or expenses incurred in connection with the offering sale or other disposition by Holder of the Piggy-back Sharesshares of Common Stock covered by the Registration Statement.
(ig) To the fullest extent permitted by law, the Company Holder will indemnify and hold harmless each Holderthe Company, the partners, membersand its directors, officers, directors employees, agents and stockholders of each Holderrepresentatives, legal counsel and accountants for each Holder, any underwriter as well as its controlling persons (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, ) against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damagesliabilities, or liabilities (or actions in respect thereof) expenses, including without limitation, attorney's fees and disbursements, which arise out of or are based upon any violation by Holder of the following statementsAct or under the Securities Exchange Act of 1934, omissions or violations: (i) any rule or regulation promulgated thereunder applicable to Holder, or arise out of or are based upon any untrue statement or omission of Holder in the Subscription Agreement between the Company and Holder, or arise out of or are based upon any untrue statement or alleged untrue statement of a any material fact contained in such registration statementthe Registration Statement, including any preliminary prospectus or final prospectus contained therein arise out of or any amendments or supplements thereto, (ii) are based upon the omission or alleged omission to state therein a material fact required to be stated thereintherein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or alleged untrue statement or omission, or alleged omission was made in such Registration Statement in reliance upon and in conformity with information furnished by Holder in writing, expressly for use in connection with such Registration Statement.
(h) To the extent permitted by law, the Company will indemnify and hold harmless Holder, including its officers, directors, employees, agents, and representatives, against any losses, claims, damages, liabilities, or expenses, including without limitation attorney's fees and disbursements, to which Holder may become subject under the Act to the extent that such losses, claims, damages or liabilities arise out of or are based upon any violation by the Company of the Act or under the Securities Exchange Act of 1934, or any rule or regulation promulgated thereunder applicable to the Company, or arise out of or are based upon any untrue or alleged untrue statement of any material fact contained in the Registration Statement, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (iii) arise out of any violation or alleged violation by any other party hereto, the Company of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Act applicable to the Company and relating to action or inaction required of the Company in connection with such Registration Statement; provided, however, that the indemnity agreement contained in this paragraph shall not apply to any loss, damage or liability to the extent that same arises out of or is based upon an untrue statement or omission made in connection with such Registration Statement in reliance upon and in conformity with information furnished in writing expressly for use in connection with such Registration Statement by Holder.
(i) Holder undertakes to comply with all applicable laws governing the distribution of securities in connection with Holder's sale of Common Stock of the Company acquired pursuant to the exercise of this Warrant, including, without limitation, Regulation M under the Securities Act, the Exchange Act of 1934, and to notify the Company of any changes in Holder's plan of distribution, including the determination of the public offering price and any dealer concession or any state securities lawdiscount so that the Company can sticker or amend the Registration Statement as the Company deems appropriate in its sole discretion.
Appears in 2 contracts
Samples: Warrant Agreement (AeroGrow International, Inc.), Warrant Agreement (AeroGrow International, Inc.)
Registration Rights. (a) The Company If at any time prior to the expiration of this Warrant the Corporation shall propose to file a any registration statement (other than any registration on Form X-0, X-0 or any other similarly inappropriate form, or any successor forms thereto) under the Securities 1933 Act covering the resale of all Shares a public offering of the Common Stock (a “Registration Statement”), it will notify the Holder as soon as practicable following the Holder’s written request hereof at least twenty (20) days prior to do so, each such filing and will use its reasonable best efforts to have include in the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable Registration Statement (to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(aextent permitted by applicable regulation), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Warrant Shares to be underwritten, the number of Shares held extent requested by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification hereof within ten (10) days after receipt of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to (which request shall specify the Holder (and any subsequent Holders of interest in this Warrant and/or Shares) at least sixty (60) days before or the proposed filing date and, Warrant Shares intended to be sold or disposed of by such notice, shall offer to such Holders Holder and describe the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities nature of any person proposed sale or other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included thereindisposition thereof); provided, however, that if a greater number of Warrant Shares is offered for participation in the Company shall not be required to honor any such request that is received more proposed offering than sixty (60) days after in the proper giving reasonable opinion of the Company’s notice or after managing underwriter of the Expiration Date. Notwithstanding any other provision proposed offering can be accommodated without adversely affecting the proposed offering, then the amount of this Section 19(b)(ii)Warrant Shares proposed to be offered by such Holders for registration, if the underwriter advises the Holder in writing that marketing factors require a limitation of as well as the number of shares securities of any other selling shareholders participating in the registration, shall be proportionately reduced to be underwritten, the a number of Shares held deemed satisfactory by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offeringmanaging underwriter. The Company Corporation shall bear and pay all expenses and fees incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registrationpreparation, filing, and qualification amendment of the Registration Statement, except that the Holder shall pay all fees, printers disbursements and accounting fees relating expenses of any counsel or apportionable thereto expert retained by the Holder and the all underwriting discounts and commissions, filing fees and disbursements of one counsel for any transfer or other taxes relating to the selling Holders selected by them.
(iii) The Company shall be obligated pursuant Warrant Shares included in the Registration Statement. As a condition precedent to the Corporation’s obligations under this Section 19(b)(iii) 9, the Holder agrees to include cooperate with the Corporation in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number preparation and filing of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offeringany Registration Statement, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) furnishing of information concerning the Holder for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated inclusion therein, or necessary in any efforts by the Corporation to make establish that the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated proposed sale is exempt under the Securities Act, the Exchange 1933 Act or as to any state securities lawproposed distribution.
Appears in 2 contracts
Samples: Warrant Agreement (Cougar Biotechnology, Inc.), Warrant Agreement (Cougar Biotechnology, Inc.)
Registration Rights. For a period commencing on the Grant Date and ending on September 3, 2005, Optionee shall have the incidental (a"piggyback") The registration rights with respect to the Option Stock as set forth in this Article 6.
6.1 If the Company shall file a registration statement proposes to register any of its Stock under the Securities Act covering the resale of all Shares (other than a registration effected solely to implement an employee benefit plan, a transaction to which Rule 145 of the Holder as soon as practicable following Commission is applicable or any other form or type of registration in which the Holder’s Stock cannot be included pursuant to Commission rule or practice) the Company will give written request notice to Optionee of its intention to do so. If such registration is proposed to be on a form which permits inclusion of Stock, and upon the written request (stating the intended method of disposition of the Option Stock) of Optionee given within fifteen (15) days after transmittal by the Company to Optionee of such notice, the Company will, subject to the limits contained in this Section 6.1, use its reasonable best efforts to have cause all shares of Option Stock of Optionee (provided the registration statement declared effective by the SEC for distribution thereof by means Option is exercised as a condition of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(aregistration), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect registration to the registrations pursuant extent requisite to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating permit such sale or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected other disposition by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included thereinOptionee so registered; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder managing such registration notifies Optionee in writing that marketing factors require a limitation market or economic conditions limit the amount of securities which may reasonably be expected to be sold, then the number of shares to be underwritten, the number of Shares held by the Holder Stock to be included in such underwriting registration by Optionee shall not be reduced unless all other securities(up to the entire amount thereof as determined in the sole discretion of the managing underwriter), other than securities and further provided, that the inclusion of such shares of Option Stock in the registration shall be subject to be compliance with the reasonable terms and conditions of any underwriting agreement respecting the registration.
(a) In connection with any registration where shares of Option Stock of Optionee are also registered pursuant to the registration rights granted in provisions of this Section, Optionee will cooperate with the 2008 SPA Company and each underwriter (if the “Other Shares”method of disposition shall be an underwritten public offering) and will take all such actions and execute and deliver all such instruments, agreements and documents as the Company or any such underwriter reasonably may request, including, but not limited to:
A. furnishing to the Company in writing such information with respect to Optionee and the proposed distribution by it as reasonably shall be necessary in order to assure compliance with federal and applicable state securities to be offered for the account of the Holders of the New Warrants and laws;
B. immediately notifying the Company, are first entirely excluded from and the underwritingmanaging underwriter (if the method of disposition shall be an underwritten public offering), and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on at any time when a pro rata basis based on the number of Piggy-back Shares and Other Shares requested prospectus relating to such registration is required to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject delivered under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statementshappening of an event of which Optionee has knowledge as a result of which the prospectus contained in such registration statement, omissions or violations: (i) any untrue statement or alleged as then in effect, includes an untrue statement of a material fact contained in such registration statement, including any preliminary prospectus regarding Optionee or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission omits to state therein a material fact regarding Optionee required to be stated therein, therein or necessary to make the statements therein regarding Optionee not misleadingmisleading in light of the circumstances then existing; and
C. to agree, upon request of the Company or the underwriters managing any underwritten offering of the Company's securities, not to sell, make any short sale of, loan, grant any option for the purchase of, or otherwise dispose of any shares of Stock (iiiother than those included in the registration) any violation or alleged violation by any other party hereto, without the prior written consent of the Securities ActCompany or such managing underwriters, as the Exchange Actcase may be, for such period of time (not to exceed one hundred eighty (180) days) from the effective date of such registration as the Company or the managing underwriters, as the case may be, may specify. Optionee agrees that the Company may instruct its transfer agent to place stop-transfer notations in its record to enforce the provisions of this subsection.
(b) If Optionee disapproves of the terms of any state securities law such underwriting, it may elect to withdraw therefrom by written notice to the Company and the managing underwriter.
(c) The Company shall have the right to terminate or withdraw any rule registration initiated by it under this Section 6.1 prior to the effectiveness of such registration whether or regulation promulgated under not Optionee has elected to include the Securities ActOption Stock in such registration.
(d) Optionee shall pay the fees and expenses of its own legal counsel, brokerage commissions payable in respect of shares of Option Stock sold on behalf of Optionee and other expenses which are not specifically included in the Exchange Act or any state securities lawdefinition of Registration Expenses set forth in subparagraph (e) of this Section 6.1.
Appears in 2 contracts
Samples: Option Agreement (Island Pacific Inc), Option Agreement (Island Pacific Inc)
Registration Rights. (a) The Company shall If, at any time during the two years following the Closing Date, Buyer proposes to file with the SEC a registration statement under the Securities Act covering on any form (other than an S-4 or S-8 or any successor form) on which the resale "Stock" (as hereinafter defined) may be registered, it shall give the Sellers written notice of its intention to file such registration statement. If any such holder so elects, by written notice to Buyer given within 30 days after their receipt of such notice from Buyer, such holder may elect to have all Shares or any portion of such holder's Stock registered on such registration statement if such registration statement becomes effective Buyer shall exercise reasonable efforts to cause such registration statement to become effective.
(b) The registration referred to in Section (a) shall be accomplished at the sole expense of Buyer, except that the holder of the Holder Stock so registered shall pay whatever additional costs (including filing fees) incurred by Buyer solely as soon as practicable following a result of the Holder’s written request to do so, and use its reasonable best efforts to have inclusion of such Stock in the registration statement declared effective and the fees and expenses of such holder's counsel.
(c) If other securities being registered by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company such registration statement are being sold publicly through one or more investment banking firms serving as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwrittenunderwriters, the number owners of Shares held by the Holder Stock to be included in such underwriting shall registration statement must agree to sell their Stock through such underwriters and the owners of Stock who do not be reduced unless all other securities are first entirely excluded from elect to have Stock registered will agree, upon the underwriting. The Company shall bear and pay all expenses incurred in connection with any registrationrequest of such underwriters, filing or qualification to defer the public sale of their Stock for a period of one hundred twenty 120 days following the effective date of the Shares with respect registration statement. Buyer shall have no obligation to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in amend such registration statement after it becomes effective to reflect subsequent events and the owners of registered Stock will not make any sales in reliance on such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause registration statement if Buyer has advised the managing underwriter of a proposed offering to permit, holders that the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) information in the proposed offering on terms and conditions registration statement is no less favorable to longer current. If any Stock is registered hereunder, Buyer shall keep the Holders as registration statement current for a period of at least 60 days following the terms and conditions applicable to securities time when the owners of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included thereinregistered Stock may commence their public sale; provided, however, that the Company Buyer shall not be required to honor keep such registration statement current beyond any date during such request that is received more than sixty (60) days after -day period on which it would be required to update such registration statement, unless the proper giving holders of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares registered Stock agree to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggyout-back offering, the Company will have no obligation to proceed with the offering of the Piggyof-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other pocket expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such updating.
(d) Notwithstanding anything herein to the contrary, Buyer shall not be required to register any Stock if counsel for Buyer opines that such Stock may be sold publicly by such owner without registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damagesunder the Securities Act (including reliance on Rule 144 under the Securities Act), or liabilities if Buyer, at its expense, procures a "no action" letter from the SEC indicating that its staff will take no action if the Stock is sold without registration.
(joint or severale) If any Stock is registered, the holder's of such Stock and Buyer will enter into a cross indemnity agreement in form and substance satisfactory to counsel for Buyer, by which a party hereto may become subject Buyer will indemnify the holders of such Stock against any liability arising under the Securities Act, except to the Exchange Act extent that liability arises in connection with information supplied to Buyer by such holders or their agents, and such holders shall indemnify Buyer in connection with such latter information.
(f) As used in this Agreement, "Stock" shall refer to the Buyer Shares issued in connection with this transaction and any other securities issued as a result of stock dividends, stock splits or other federal capital adjustments or state law, insofar as exchanges in connection with such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawBuyer Shares.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Kupper Parker Communications Inc), Stock Purchase Agreement (Kupper Parker Communications Inc)
Registration Rights. (a) The Company Registered Holder shall file a registration statement under the Securities Act covering the resale of all Shares of the Holder as soon as practicable following the Holder’s written request to do so, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares rights with respect to the registrations pursuant to this Warrant Shares as specified in Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and 9 of the fees and disbursements of one counsel for the selling Holders as selected by themSecond Extension Agreement.
(ib) The Company covenants and agrees with Furthermore, the Registered Holder (and any subsequent Holders of this shall be entitled to "piggyback" registration rights for so long as the Registered Holder shall own Warrant and/or Shares) that, in the event . Whenever the Company proposes to file a registration statement Registration Statement (other than pursuant to subsection 19(a) at any time and from time to time, it will, prior to such filing, give written notice to the Registered Holder of its intention to do so and, upon the written request of the Registered Holder given within 20 days after the Company provides such notice (which request shall state the intended method of disposition of such Registrable Shares), the Company shall use its best efforts to cause all Registrable Shares which the Company has been requested by such Registered Holder to register to be registered under the Securities Act (including, without limitation, relating to an initial public offering the extent necessary to permit their sale or other disposition in accordance with the intended methods of Company Common Stock or shall receive a distribution specified in the request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then Registered Holder; provided that the Company shall in each case give prompt written notice of such proposed filing have the right to postpone or withdraw any registration effected pursuant to subsection 19(b) without obligation to the Registered Holder (and or any subsequent Holders of persons or entities to whom the rights under this Warrant and/or Shares) at least sixty (60) days before are transferred by the proposed filing date andRegistered Holder, by such notice, shall offer its successors or assigns pursuant to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writingSection 13 hereof.
(iic) The Company shall permitIn connection with any registration under subsection 19(b) involving an underwriting, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor include any Registrable Shares in such request that is received more than sixty (60) days after registration unless the proper giving holders thereof accept the terms of the Company’s notice or after underwriting as agreed upon between the Expiration DateCompany and the underwriters selected by it (provided that such terms must be consistent with this Warrant). Notwithstanding any other provision If in the opinion of this Section 19(b)(ii), if the managing underwriter advises the Holder in writing that it is appropriate because of marketing factors require a limitation of to limit the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Registrable Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The , then the Company shall use its reasonable best efforts be required to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined include in the Securities Act) for such Holder and each personregistration only that number of Registrable Shares, if any, which the managing underwriter believes should be included therein. If the number of Registrable Shares to be included in the offering in accordance with the foregoing is less than the total number of shares which the holders of Registrable Shares have requested to be included, then the holders of Registrable Shares who controls such Holder or underwriter within the meaning have requested registration and other holders of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay securities entitled to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by include them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including shall participate in the registration pro rata based upon their total ownership of shares of Common Stock (giving effect to the conversion into Common Stock of all securities convertible thereinto). If any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission holder would thus be entitled to state therein a material fact required include more securities than such holder requested to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Actregistered, the Exchange Act, any state securities law or any rule or regulation promulgated under excess shall be allocated among other requesting holders pro rata in the Securities Act, manner described in the Exchange Act or any state securities lawpreceding sentence.
Appears in 2 contracts
Samples: Common Stock Purchase Warrant (Igi Inc), Common Stock Purchase Warrant (Igi Inc)
Registration Rights. If the shares of Parent Common Stock issuable pursuant to the exchange of securities contemplated by Section 1.8(a) above are issued under the 506 Exemption, then Parent shall grant to the stockholders of the Company the right to request, upon the written request from the stockholders of the Company holding a majority of the shares of Parent Common Stock issuable at the Effective Time, Parent to file, at Parent's expense (a) The Company shall file a but excluding underwriters' or brokers' discounts and commissions), one registration statement under the Securities Act covering the registration of such shares of Parent Common Stock for the public resale of all Shares the shares of Parent Common Stock on a continuous or delayed basis pursuant to Rule 415(a)(1) of the Holder as soon as practicable following the Holder’s written request to do soSecurities Act, and use its reasonable best efforts Parent shall prepare and file such registration statement. The stockholders of the Company shall have a period of one (1) year after the Effective Time in which to request such registration by Parent, and Parent shall keep such registration statement effective for (i) one (1) year after the effective date of such registration statement, (ii) the date that is two (2) years from the Effective Time, or (iii) until all shares included in such registration statement have been sold, whichever occurs first. If the stockholders of the Company initiating the registration statement declared effective by request hereunder intend to distribute the SEC for distribution thereof shares of Parent Common Stock by means of an underwriting, they shall so advise Parent. The underwriter will be selected by In such event, the right of any stockholder of the Company and to include his, her or its shares of Parent Common Stock in such registration shall be reasonably acceptable to conditioned upon such stockholder's participation in such underwriting and the Holder. The Holder shall (together with inclusion of such shares in the underwriting, and all stockholders of the Company as provided herein below) proposing to distribute their shares of Parent Common Stock through such underwriting shall enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding It shall be a condition precedent to the obligations of Parent to take any other provision of this Section 19(a), if action pursuant to the underwriter advises rights granted to the Holder in writing that marketing factors require a limitation stockholders of the number of Shares Company pursuant to be underwrittenthis section that each stockholder shall furnish to Parent such information regarding itself, the number shares of Shares Parent Common Stock held by it, and the Holder to intended method of disposition of such securities as Parent shall reasonably request and as shall be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred required in connection with any registrationthe actions to be taken by Parent. Notwithstanding the foregoing, filing or qualification if Parent shall furnish to the stockholders of the Shares Company requesting a registration statement pursuant to this section a certificate signed by the Chief Executive Officer of Parent stating that in the good faith judgment of the Board of Directors of Parent, it would be seriously detrimental to Parent and its stockholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, Parent shall have the right to defer taking action with respect to such filing for a period of not more than 120 days after receipt of the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and request from the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such requisite number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities stockholders of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included thereinCompany; provided, however, that Parent may not utilize this right more than once. In addition, if a material development or transaction affecting Parent that has not yet been publicly disclosed occurs after such registration statement is declared effective, and if Parent shall determine in good faith that it would be adversely affected by such disclosure, Parent may so notify the stockholders of the Company and shall deliver to the stockholders of the Company a certificate signed by an officer of Parent affirming that Parent would be adversely affected by such disclosure (such notice being referred to herein as a "DEFERRAL NOTICE"), and shall thereafter be entitled to defer preparing and furnishing any required supplement or amendment to such registration statement until such time as it would not be so adversely affected, but in any event for a period of no more than one hundred twenty (120) days following delivery of the Deferral Notice to each stockholder of the Company selling shares pursuant to the registration statement, at which time it shall so notify the stockholders of the Company and shall prepare and furnish to the stockholders of the Company any such supplement or amendment as may then be required. Following receipt of a Deferral Notice, the Holders shall not make any further sales of shares of Parent Common Stock pursuant to the registration statement until the stockholders of the Company receive such notice from Parent that such amendment or supplement has been filed with the Securities and Exchange Commission. Following receipt of any supplement or amendment to any prospectus, the stockholders of the Company shall deliver such amended, supplemental or revised prospectus in connection with any offers or sales of Parent Common Stock, and shall not be required to honor deliver or use any such request that is received more than sixty (60) days after prospectus not so supplemented, amended or revised. If Parent issues a Deferral Notice, Parent will extend the proper giving period of effectiveness of the Company’s notice or after registration statement for an amount of time equal to the Expiration Datelength of the deferral period. Notwithstanding any other provision of this Section 19(b)(ii)of this Agreement, if the underwriter advises the Holder in writing that marketing factors require Parent may not issue a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other Deferral Notice more than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable two consecutive times in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities twelve (joint or several12) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawmonth period.
Appears in 2 contracts
Samples: Merger Agreement (Outdoor Channel Holdings Inc), Merger Agreement (Outdoor Channel Holdings Inc)
Registration Rights. (a) The To the extent the Company shall file does not maintain an effective registration statement for the Warrant Shares and in the further event that the Company files a registration statement under with the Securities Act and Exchange Commission covering the resale sale of all Shares its shares of Common Stock (other than a registration statement on Form S-4 or S-8, or on another form, or in another context, in which such “piggyback” registration would be inappropriate), then, for a period of three (3) years from the commencement of sales of the Offering, the Company shall give written notice of such proposed filing to the Holder as soon as practicable following but in no event less than ten (10) days before the Holder’s written request anticipated filing date, which notice shall describe the amount and type of securities to do sobe included in such offering, the intended method(s) of distribution, and the name of the proposed managing underwriter or underwriters, if any, of the offering, and offer to the Holder in such notice the opportunity to register the sale of such number of shares of Warrant Shares as such Holder may request in writing within five (5) days following receipt of such notice (a “Piggyback Registration”). The Company shall cause such Warrant Shares to be included in such registration and shall use its commercially reasonable best efforts to have cause the registration statement declared effective by managing underwriter or underwriters of a proposed underwritten offering to permit the SEC for distribution thereof by means Warrant Shares requested to be included in a Piggyback Registration on the same terms and conditions as any similar securities of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to permit the Holder. The Holder shall (together sale or other disposition of such Warrant Shares in accordance with the Company as provided herein belowintended method(s) of distribution thereof. All Holders proposing to distribute their securities through a Piggyback Registration that involves an underwriter or underwriters shall enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwritingPiggyback Registration. Notwithstanding any other provision of this Section 19(a)Furthermore, if the underwriter advises the each Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held must provide such information as reasonably requested by the Holder Company (which information shall be limited to that which is required for disclosure under the Securities Act and the forms, rules and regulations promulgated thereunder) to be included in the registration statement timely or the Company may elect to exclude such underwriting shall not be reduced unless all other securities are first entirely excluded Holder from the underwriting. The registration statement.
b) In addition, to the extent the Company shall bear and pay all expenses incurred in connection with any registrationdoes not maintain an effective registration statement for the Warrant Shares, filing or qualification for a period of three (3) years from the commencement of sales of the Offering, the Holder shall be entitled to one (1) demand right for the registration of the Warrant Shares with respect at the Company’s expense (other than any underwriting discounts, selling commissions, share transfer taxes applicable to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filingsale of the Warrant Shares, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holder) (the “Demand Registration”). In the event of a Demand Registration, the Company shall use its commercially reasonable efforts to register the applicable Warrant Shares within sixty (60) days after receiving the Demand Registration. All Holders as selected by them.
(i) The Company covenants and agrees of Warrant Shares proposing to distribute their securities through a Demand Registration that involves an underwriter or underwriters shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such Demand Registration. Furthermore, each Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event must provide such information as reasonably requested by the Company proposes (which information shall be limited to file a registration statement that which is required for disclosure under the Securities Act (includingand the forms, without limitation, relating rules and regulations promulgated thereunder) to an initial public offering of Company Common Stock be included in the registration statement timely or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will may elect to exclude such Holder from the registration statement.
c) Notwithstanding the foregoing, the registration rights described in this Section 5 shall be subject to limitations imposed by the Commission’s rules or comments of the Commission staff in connection with its review of the registration statement for any such resale registration. Moreover, notwithstanding the foregoing registration obligations of the Company, if the Company furnishes to the Holders requesting a Demand Registration a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its stockholders for a registration statement to either become effective on or after remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Initial Exercise Date and on Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or before (iii) render the Expiration DateCompany unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall in each case give prompt written notice of such proposed filing have the right to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer defer taking action with respect to such Holders the opportunity to include in such Demand Registration or withdraw a related registration statement such number for a period of Shares as they may request in writing.
not more than forty-five (ii45) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included thereincalendar days; provided, however, that the Company shall may not be required to honor any such request that is received invoke this right more than sixty twice in any twelve (6012) days after month period or during the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA twelve (the “Other Shares”12) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering month period prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designateTermination Date.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.
Appears in 2 contracts
Samples: Placement Agency Agreement (Quantum Computing Inc.), Placement Agency Agreement (Tiziana Life Sciences LTD)
Registration Rights. (a) The If at any time when there is not an effective registration statement covering all of the Underlying Securities, the Company shall determine to prepare and file with the Securities and Exchange Commission a registration statement relating to an offering for its own account or the account of others under the Securities Act covering of any of its equity securities, other than on Form S-4 or Form S-8 (each as promulgated under the resale Securities Act) or their then equivalents relating to equity securities to be issued solely in connection with any acquisition of any entity or business or equity securities issuable in connection with stock option or other employee benefit plans, the Company shall send to each Holder of Underlying Securities written notice of such determination and, if within seven (7) Business Days after receipt of such notice, any such Holder shall so request in writing (which request shall specify the Underlying Securities intended to be disposed of by the Holder), the Company will cause the registration under the Securities Act of all Shares Underlying Securities which the Company has been so requested to register by the Holder, to the extent required to permit the disposition of the Holder as soon as practicable following Underlying Securities so to be registered, provided that if at any time after giving written notice of its intention to register any securities and prior to the Holder’s written request to do so, and use its reasonable best efforts to have effective date of the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by filed in connection with such registration, the Company and shall determine for any reason not to register or to delay registration of such securities, the Company may, at its election, give written notice of such determination to such Holder and, thereupon, (i) in the case of a determination not to register, shall be reasonably acceptable relieved of its obligation to register any Underlying Securities in connection with such registration, and (ii) in the Holder. The Holder case of a determination to delay registering, shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding be permitted to delay registering any other provision of Underlying Securities being registered pursuant to this Section 19(a), if 1 for the underwriter advises same period as the Holder delay in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in registering such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwritingsecurities. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement all or any part of such number Underlying Securities such Holder requests to be registered. In the case of Shares as they may request an underwritten public offering, if the managing underwriter(s) or underwriter(s) should reasonably object to the inclusion of the Underlying Securities in writing.
(ii) The such registration statement, then if the Company shall permit, or shall cause after consultation with the managing underwriter should reasonably determine that the inclusion of a proposed such Underlying Securities, would materially adversely affect the offering to permitcontemplated in such registration statement, and based on such determination recommends inclusion in such registration statement of fewer or none of the Underlying Securities of the Holders, then (x) the number of Underlying Securities of the Holders from whom included in such written requests have been received to include registration statement shall be reduced pro-rata among such Holders (based upon the number of Shares (the “Piggy-back Shares”) Underlying Securities requested to be included in the proposed offering on terms and conditions no less favorable to registration), if the Company after consultation with the underwriter(s) recommends the inclusion of fewer Underlying Securities, or (y) none of the Underlying Securities of the Holders as the terms and conditions applicable to securities of shall be included in such registration statement, if the Company included therein or as applicable to securities after consultation with the underwriter(s) recommends the inclusion of any person other than the Company and the Holders none of Piggy-back Shares if the securities of any such person are included thereinUnderlying Securities; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be are being offered for the account of the Holders of the New Warrants and other persons or entities as well as the Company, are first entirely excluded from the underwriting, and unless such reduction shall not represent a greater fraction of the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested Underlying Securities intended to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected offered by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders than the fraction of similar reductions imposed on such Shares shall designateother persons or entities (other than the Company).
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.
Appears in 2 contracts
Samples: Common Stock Purchase Warrant (Thinkengine Networks, Inc.), Common Stock Purchase Warrant (Thinkengine Networks, Inc.)
Registration Rights. (a) The Warrants and the Warrant Shares have not been registered under the Securities Act as of the date of this Agreement. Within a reasonable period of time following the Initial Warrant Exercise Date, if applicable, the Company shall prepare and file a registration statement on Form S-3 (the "Registration Statement") under the Securities Act covering of 1933, as amended (the "Securities Act") relating to the resale of all the Warrant Shares issued in the form of the Holder as soon as practicable following the Holder’s written request to do so, Common Stock and shall use its commercially reasonable best efforts to have cause such Registration Statement to become effective for a period of three (3) years thereafter or such shorter period that shall terminate (a) when all the registration statement declared effective Warrant Shares covered by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected Registration Statement have been sold or (b) at any time when the Registered Holders are entitled to sell all the Warrant Shares covered by the Company and shall be reasonably acceptable Registration Statement under the Securities Act pursuant to the Holder. The Holder shall Rule 144 (together with the Company as provided herein belowor any similar rule or regulation) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding without any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwritingvolume limitations. The Company shall bear all costs and pay all fees associated with the Registration Statement other than any fees and expenses incurred in connection with by any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected retained by them.
(i) The Company covenants and agrees with the a Registered Holder (and any subsequent Holders selling costs or expenses incurred by a Registered Holder. Until the Registration Statement becomes effective, upon exercise, in part or in whole, of this Warrant, certificates representing any Warrant and/or Shares) that, in Shares shall bear the event the Company proposes to file a registration statement following legend: These securities have not been registered under the Securities Act of 1933. Such securities may not be sold or offered for sale, transferred, hypothecated or otherwise assigned in the absence of an effective registration statement with respect thereto under such Act or an opinion of counsel reasonably satisfactory to the Company that an exemption from registration for such sale, offer, transfer, hypothecation or other assignment is available under such Act. At the request of the Registered Holder thereof, the Company shall remove the foregoing legend from such certificates on registration of the legended securities under the Act (includingif any) or on receipt by the Company of an opinion of counsel of the Registered Holder (secured at the Registered Holder's sole cost and expense) reasonably satisfactory in substance to the Company that such registration is no longer required with respect to such securities. Each Registered Holder agrees that if requested by the Company, without limitation, relating such Registered Holder shall not effect any sale of Warrant Shares pursuant to an initial public the Registration Statement for any period deemed necessary (i) by the Company or any underwriter in connection with the offering of Company shares of the Company's Common Stock or shall receive a request for registration on Form S-3 from any stockholder(ii) with respect to any class of security which becomes or which by the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then if the Company shall is in each case give prompt written notice possession of material information that has not been disclosed to the public and the Company reasonably deems disclosure of such proposed filing information in a registration statement to be inadvisable; provided, however, that the Registered Holders shall not be obligated to refrain from effecting sales of Warrant Shares pursuant to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least Registration Statement for more than sixty (60) consecutive days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein"blackout period"); provided, however, that the Company shall not be required to honor any such request that is received may impose no more than sixty two (602) blackout periods in any consecutive six (6) month period; and provided, further, that if a blackout period is in effect at the conclusion of the three (3) year term relating to the effective period of the Registration Statement (referred to above in this Section 9), such three (3) year term shall be extended for ten (10) business days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement end of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities blackout period (or actions consecutive blackout periods) that are in respect thereofeffect at the initial expiration of such three (3) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawyear term.
Appears in 2 contracts
Samples: Warrant Agreement (Talk Com), Warrant Agreement (Talk Com)
Registration Rights. No later than 270 days following the Closing, the Company shall file with the SEC, a registration statement (athe “Resale Registration Statement”) The covering the resale to the public by the Investors of the Securities purchased in this Offering (the “Registrable Securities”). Notwithstanding the foregoing, if the SEC informs the Company that any of the Registrable Securities to be covered by the Resale Registration Statement cannot, as a result of the application of Rule 415 of the Securities Act, be registered for resale as a secondary offering on a single registration statement, the number of Registrable Securities to be covered by the Resale Registration Statement shall be reduced by such number of shares (if any) as may be required by the SEC (the “Reduction Securities”), and in such event, the Company shall file a subsequent registration statement under the Securities Act covering the resale of all Shares of the Holder statement, as described above, as soon as practicable following thereafter covering the Holder’s written request to do so, and Reduction Securities (the “Reduction Securities Registration Statement”). The Company shall use its best commercially reasonable best efforts to have cause the registration statement Resale Registration Statement and the Reduction Securities Registration Statement, if any, to be declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company as soon as practicable after their respective initial filing dates and shall be reasonably acceptable to cause the Holder. The Holder shall (together with Resale Registration Statement and the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a)Reduction Securities Registration Statement, if the underwriter advises the Holder in writing that marketing factors require a limitation any, to remain effective for at least twelve (12) months. All fees, costs and expenses of the number of Shares and incidental to be underwritten, the number of Shares held by the Holder to be included in any such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holderincluding, including (without limitation) , all registration, filing, and qualification FINRA fees, printers and accounting fees relating or apportionable thereto and the printing expenses, fees and disbursements of one counsel and accountants for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice be paid by the Company. Fees and disbursements of such proposed filing to counsel and accountants for the Holder (holders of Registrable Securities and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, other expenses incurred by such notice, holders not expressly included above shall offer be borne by such holders. If Registrable Securities held by or issuable to such Holders the opportunity to include in such registration statement such number any holder of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person Registrable Securities are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered registration pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) provisions of this Section, each such holder of Registrable Securities will, severally and securities to be offered for the account of the Holders of the New Warrants and the Companynot jointly, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holderthe Company, the partners, members, its directors and officers, any controlling person and any underwriter from and against, and will reimburse the Company, its directors and stockholders of each Holder, legal counsel and accountants for each Holderofficers, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned personand any underwriter with respect to, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such and all loss, claim, damage, liability, cost or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply expense to amounts paid in settlement of which parent or any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto and/or any underwriter may become subject under the Securities Act, the Exchange Act or other federal or state lawotherwise, insofar as such losses, claims, damages, liabilities, costs or liabilities (or actions in respect thereof) arise out of or expenses are based upon any of the following statements, omissions or violations: (i) caused by any untrue statement or alleged untrue statement of a any material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments amendment or supplements supplement thereto, (ii) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, therein or necessary to make the statements therein therein, in light of the circumstances in which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was so made in reliance upon and in strict conformity with written information furnished by or on behalf of such holder specifically for use in the preparation thereof. The Company will indemnify and hold harmless each holder of Registrable Securities and such holder’s directors and officers, managers and members, any controlling person and any underwriter (iiicollectively, “Holder Indemnitees”) from and against, and will reimburse such Holder Indemnitees with respect to, any and all loss, damage, liability, cost or expense to which any such Holder Indemnitee may become subject under the Act or otherwise, insofar as such losses, damages, liabilities, costs or expenses are caused by (i) any untrue statement or alleged untrue statement of any material fact contained in such registration statement, any prospectus contained therein or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and (ii) any violation by the Company of any federal, state or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities common law or any rule or regulation promulgated applicable to the Company and relating to any action or inaction required of the Company in connection with any such registration; provided that the Company will not be liable under this Section in any such case to the Securities Actextent, but only to the Exchange Act extent, that any such untrue statement or any state securities lawalleged untrue statement or omission or alleged omission was so made in reliance upon and in strict conformity with written information furnished by or on behalf of such holder specifically for use in the preparation of such registration statement.
Appears in 2 contracts
Samples: Subscription Agreement (China Ceramics Co., LTD), Subscription Agreement (China Ceramics Co., LTD)
Registration Rights. (a) The Company shall file a registration statement under the Securities Act covering the resale of all Shares of and the Holder as soon as practicable following the Holder’s written request to do so, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by agree that if at any time the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes propose to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which its Common Stock on a form suitable for an offering by a selling shareholder, it will give notice in writing to such effect to the Holder at least thirty (30) days prior to such filing, and, at the written request of the Holder made within ten (10) days after the receipt of such notice, will include therein at the Company's cost and expense (including the fees and expenses of one counsel to such Holder, but excluding underwriting discounts, commissions and filing fees attributable to the Warrant Shares included therein) such of the Warrant Shares as such Holder shall request; provided that if the offering being registered by the Company believes will become effective on or after is underwritten and if the Initial Exercise Date representative of the underwriters determines that the inclusion therein of the Warrant Shares requested to be included would materially and on or before adversely affect the Expiration Datesale of the securities to be sold by the Company thereunder, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering only that number of securities, including the Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering.
(b) The Company's obligations under Section 6(a) above with respect to each Holder of Warrant Shares that have not yet been purchased by a Holder so long as are expressly conditioned upon such Holder submits an undertaking Holder's furnishing to the Company that in writing such information concerning such Holder intends to exercise and the terms of such Holder's proposed offering as the Company shall reasonably request for inclusion in the registration statement. If any registration statement including any of the Warrant for at least Shares is filed, then the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
indemnify each Holder thereof (iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against ) from any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damagedamage or liability arising out of, liability, based upon or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for way relating to any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein statement or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, therein or necessary to make the statements therein not misleading, except for any such statement or omission based on information furnished in writing by such Holder of the Warrant Shares expressly for use in connection with such registration statement; and such Holder shall indemnify the Company (iii) any violation or alleged violation by any other party heretoand each of its officers and directors who has signed such registration statement, each director, each person, if any, who controls the Company within the meaning of the Securities Act, each underwriter for the Exchange ActCompany and each person, any state securities law or any rule or regulation promulgated under if any, who controls such underwriter within the meaning of the Securities Act) and each other such Holder against any loss, claim, damage or liability arising from any such statement or omission which was made in reliance upon information furnished in writing to the Exchange Act or any state securities lawCompany by such Holder of the Warrant Shares expressly for use in connection with such registration statement.
Appears in 2 contracts
Samples: Stock Purchase Warrant (Tradeqwest Inc), Stock Purchase Warrant (Tradeqwest Inc)
Registration Rights. (a) The Company shall agrees that, within thirty (30) calendar days after the Closing, the Company will file with the SEC (at the Company’s sole cost and expense) a registration statement under (the Securities Act covering “Registration Statement”) registering the resale of all the Shares of (together with any other equity interests received in exchange therefor, the Holder “Registrable Securities,” as further described below), and the Company shall use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable following after the Holder’s written request to do so, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwritingfiling thereof. The Company shall bear and pay all expenses incurred in connection with any registration, filing agrees that the Company will cause such Registration Statement or qualification another registration statement (which may be a “shelf” registration statement) to remain effective until the earlier of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with two (2) years from the Holder issuance of the Registrable Securities, (and any subsequent Holders ii) the date on which Subscriber ceases to hold the Registrable Securities covered by such Registration Statement, or (iii) on the first date on which Subscriber can sell all of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement its Registrable Securities under Rule 144 promulgated under the Securities Act (including, “Rule 144”) without limitation, relating limitation as to an initial public offering the manner of Company Common Stock sale or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice amount of such proposed filing equity interests that may be sold. Subscriber agrees to the Holder (and any subsequent Holders disclose its beneficial ownership, as determined in accordance with Rule 13d-3 of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and of the Registrable Securities to the Company will pay (or its successor) upon request to each assist the Company in making the determination described above. The Company’s obligations to include the Registrable Securities in the Registration Statement are contingent upon Subscriber furnishing in writing to the Company such Holderinformation regarding Subscriber, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent Registrable Securities of the Company (which consent held by Subscriber and the intended method of disposition of the Registrable Securities as shall not be unreasonably withheld, delayed or conditioned), nor shall reasonably requested by the Company be liable in any to effect the registration of the Registrable Securities, and shall execute such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use documents in connection with such registration by as the Company may reasonably request that are customary of a selling stockholder in similar situations. If the SEC prevents the Company from including any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) all of the Registrable Securities proposed to which a party hereto may become subject be registered for resale under the Securities Act, Registration Statement due to limitations on the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out use of or are based upon any Rule 415 of the following statementsSecurities Act for the resale of the Company’s Registrable Securities by the applicable stockholders or otherwise, omissions or violations: (i) any untrue statement or alleged untrue statement such Registration Statement shall register for resale such number of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, Company registrable securities which is equal to the maximum number of Company registrable securities as is permitted by the SEC and (ii) the omission or alleged omission to state therein a material fact required number of Company registrable securities to be stated thereinregistered for each selling stockholder named in the Registration Statement shall be reduced pro rata among all such selling stockholders. The Company will provide a draft of the Registration Statement to Subscriber for review reasonably in advance of filing the Registration Statement. In no event shall Subscriber be identified as a statutory underwriter in the Registration Statement unless required or requested by the SEC; provided, or necessary that if Subscriber is to make be identified as a statutory underwriter in the statements therein not misleadingRegistration Statement, or (iii) any violation or alleged violation by Subscriber will have an opportunity to withdraw from the Registration Statement. “Registrable Securities” shall include the Registrable Securities acquired pursuant to this Subscription Agreement and any other party hereto, equity security of the of the Company issued or issuable with respect to the Registrable Securities Actby way of share split, dividend, distribution, recapitalization, merger, exchange, replacement or similar event or otherwise, but not, for the avoidance of doubt, any other equity security of the Issuer owned or acquired by Subscriber. For as long as Subscriber holds the Registrable Securities issued pursuant to this Subscription Agreement, the Company will (A) make and keep public information available, as those terms are understood and defined in Rule 144, (B) file in a timely manner all reports and other documents with the SEC required under the Exchange Act, any state securities law as long as the Company remains subject to such requirements, and (C) provide all customary and reasonable cooperation necessary, in each case, to enable Subscriber to resell the Registrable Securities pursuant to the Registration Statement or any rule or regulation promulgated under the Securities ActRule 144 (when Rule 144 becomes available to Subscriber), the Exchange Act or any state securities lawas applicable.
Appears in 2 contracts
Samples: Backstop Subscription Agreement (Foxo Technologies Inc.), Backstop Subscription Agreement (Delwinds Insurance Acquisition Corp.)
Registration Rights. Upon the request of Pentair, the Company agrees that upon exercise of the Stock Option (ai) The Company shall file during a registration statement period of five years from the first purchase of Shares to effect up to three registrations under the Securities Act and any applicable state securities laws covering the resale any part or all of such Shares acquired and (ii) to include any part or all of such Shares of the Holder as soon as practicable following the Holder’s written request to do so, and use its reasonable best efforts to have the in any registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected filed by the Company under the Securities Act and in any related applicable state securities laws registrations or applications in which such inclusion is permitted under applicable rules and regulations unless, in the written opinion of counsel to the Company, addressed to Pentair, which opinion shall be reasonably acceptable satisfactory to Pentair and its counsel, such action is not required for the prompt sale and distribution of such Shares to the Holderpublic. The Holder registrations and applications effected under this paragraph 7 shall (together be effected at the Company's expense except for underwriting discounts relating to the Shares sold on behalf of Pentair and except for fees of counsel to Pentair. In connection with any registration under this paragraph 7, the parties hereto agree to indemnify each other in the customary manner, and, in the case of an underwritten offering, the Company as provided herein below) agrees to enter into an underwriting agreement in a customary form with and to indemnify Pentair and the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filingunderwriters, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and Pentair agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than indemnify the Company and the Holders of Piggy-back Shares if underwriters, in the securities manner and to the extent as is customary in such underwritten offerings. In the event of any such person are included therein; provideddemand for registration pursuant to clause (i) above, however, that the Company shall not be required may delay the filing of a registration statement for a period of up to honor any such request that is received more than sixty (60) 90 days after if, in the proper giving good faith judgment of the Board of Directors of the Company’s notice or after , such delay is necessary in order to avoid interference with a planned material transaction involving the Expiration DateCompany. Notwithstanding With respect to any other provision of this Section 19(b)(ii)registration pursuant to clause (ii) above, if the underwriter advises the Holder in writing that marketing factors require such registration relates to a limitation firm commitment underwriting of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and sold by the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested Company may decline to be included in such offering. The Company shall bear and pay include all expenses incurred in connection with or any registration, filing or qualification portion of the Shares with respect to acquired by Pentair upon exercise of the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and Stock Options if the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders inclusion of such Shares shall designate.
(iv) If would, in the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering judgment of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any managing underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statementunderwriting, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawmaterially interfere therewith.
Appears in 2 contracts
Samples: Stock Option Agreement (Communication Cable Inc), Stock Option Agreement (Pentair Inc)
Registration Rights. (a) The If the Company shall file a registration statement proposes to register any of its A Shares under the Securities Act in connection with a public offering of such securities solely for cash (other than in: (i) a registration relating to the sale of securities to employees of the Company or a subsidiary pursuant to a stock option, stock purchase, or similar plan; (ii) a registration relating to an SEC Rule 145 transaction; (iii) a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the resale of all Shares sale of the Holder as soon as practicable following Investor’s Registrable Shares; (iv) a registration in which the Holder’s written request to do soonly Shares being registered are A Shares issuable upon conversion of debt securities that are also being registered; or (v) an IPO (collectively, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by a “Company Offering”), the Company and shall be reasonably acceptable shall, at such time, promptly give the Investors notice of such registration (the “Registration Notice”). Upon the request of any Investor given within twenty (20) days after the Registration Notice, the Company shall, subject to the Holder. The Holder shall (together with the Company as provided herein paragraph below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of cause to be registered the number of Registrable Shares to be underwritten, the number of Shares held by the Holder that such Investor has requested to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from registration (the underwriting“Investor Requested Shares”). The Company shall bear and pay all expenses incurred in connection with have the right to terminate or withdraw any registration initiated by it under this Section 10.15 before the effective date of such registration, filing whether or qualification not the Investor has elected to include its A Shares in such registration. The expenses (other than all underwriting discounts, selling commissions, and stock transfer taxes applicable to the sale of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filingInvestor’s A Shares, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected Investor) of such withdrawn registration shall be borne by themthe Company.
(ib) The In connection with any Company covenants and agrees with Offering involving an underwriting of shares of the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing Companypursuant to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date andparagraph above, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor include any such request that is received more than sixty (60) days after the proper giving of the CompanyInvestor’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Registrable Shares held by the Holder to be included in such underwriting shall unless the Investor accepts the terms of the underwriting as agreed upon between the Company and its underwriters, and then only in such quantity as the underwriters in their sole discretion determine will not be reduced unless all other jeopardize the success of the Company Offering. If the total number of securities, other than securities to be registered pursuant to including the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Investor’s Registrable Shares requested to be included in such offering. The , exceeds the number of securities to be sold (including those contained in the Company shall bear and pay all expenses incurred Offering) that the underwriters in connection their reasonable discretion determine is compatible with any registration, filing or qualification the success of the Shares with respect to Company Offering, then the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) required to include in the piggy-back offering Shares only that have not yet been purchased by a Holder so long as number of such Holder submits an undertaking to shares, which the underwriters and the Company in their sole discretion determine will not jeopardize the success of the Company Offering, with the Company Offering having priority over the sale of the Investor’s Registrable Shares. Notwithstanding the foregoing in the event that such Holder intends it is not possible to exercise include all the Warrant for at least Investors Requested Shares in the offering, the number of the Investor Requested Shares to be included in such piggy-back the offering prior to shall be reduced pro rata for each Investor based on the consummation number of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Registrable Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designateheld.
(ivc) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering The right of the Piggy-back Shares.
Investor to request inclusion of the Investor’s Registrable Shares in any registration pursuant to the paragraphs above shall terminate upon the earliest to occur of: (i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter a deemed liquidation event (as defined in the Securities ActArticles) for and (ii) such Holder and each person, if any, who controls such Holder time as Rule 144 or underwriter within the meaning of another similar exemption under the Securities Act or is available for the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement sale of any such loss, claim, damage, liability, or action if such settlement is effected without the consent all of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon Investor’s then Registrable Shares without limitation during a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawthree-month period without registration.
Appears in 2 contracts
Samples: Shareholder Agreement (MeiraGTx Holdings PLC), Shareholder Agreement (MeiraGTx Holdings PLC)
Registration Rights. Subject to applicable blackout periods as described below, the Company agrees that, as promptly as practicable after the Closing and in any event within 45 calendar days after the Closing, the Company will file with the SEC (aat the Company’s sole cost and expense) The Company shall file a registration statement under the Securities Act covering registering the resale of all the Acquired Shares of (the Holder “Registration Statement”) and the Company shall use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable following after the Holder’s written request filing thereof. The Company agrees to do socause such registration statement or another shelf registration statement to remain effective until the earlier of (i) two years from the issuance of the Acquired Shares, and use or (ii) the first date on which the Purchaser can sell all of its reasonable best efforts Acquired Shares (or shares received in exchange therefor) under Rule 144 of the Securities Act within 90 days without limitation as to have the amount or manner of sale of such securities that may be sold. The Company may delay the filing of the registration statement declared effective by or suspend the SEC for distribution thereof by means use of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request if it determines that in writing.
(ii) The Company shall permitorder for the registration statement to not contain a material misstatement or omission, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received an amendment thereto would be needed to include such number of information that would at that time not otherwise be required in a foreign private issuer report under the Exchange Act. The Purchaser agrees to disclose its ownership to the Company upon request to assist the Company in making the determination described above. The Company’s obligations to include the Acquired Shares (the “Piggy-back Shares”or shares issued in exchange therefor) in the proposed offering on terms and conditions no less favorable Registration Statement are contingent upon the Purchaser furnishing in writing to the Holders as Company such information regarding the terms and conditions applicable to Purchaser, the securities of the Company included therein or held by the Purchaser and the intended method of disposition of the Acquired Shares as applicable to securities of any person other than shall be reasonably requested by the Company to effect the registration of the Acquired Shares, and the Holders of Piggy-back Shares if the securities of any shall execute such person are included therein; provided, however, that documents in connection with such registration as the Company shall not be required to honor any such may reasonably request that is received more than sixty (60) days after the proper giving are customary of the Company’s notice or after the Expiration Datea selling stockholder in similar situations. Notwithstanding any other provision of this Section 19(b)(ii)the foregoing, if the underwriter advises SEC prevents the Holder in writing that marketing factors require Company from including any or all of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Acquired Shares or otherwise, such Registration Statement shall register the resale of a limitation number of shares which is equal to the maximum number of shares as is permitted by the SEC. In such event, the number of shares to be underwritten, registered for each selling shareholder named in the number Registration Statement shall be reduced pro rata among all such selling shareholders. In connection with any transfer of the Acquired Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered Purchaser pursuant to the registration rights granted plan of distribution in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offeringRegistration Statement, the Company will have no obligation use its commercially reasonable efforts to proceed with cause the offering of transfer agent for the Piggy-back SharesShares to remove the restrictive legend referred to in Section 8(b).
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.
Appears in 2 contracts
Samples: Share Purchase and Subscription Agreement (Global Blue Group Holding AG), Share Purchase and Subscription Agreement (Global Blue Group Holding AG)
Registration Rights. Within 120 days of the Issue Date (a) The the "Filing Date"), Company shall file a registration statement under the Securities Act covering the resale of all the Shares of the Holder as soon as practicable following the Holder’s written request to do so, and use its reasonable best efforts to have the on a registration statement declared (the "Registration Statement") with the Securities Exchange Commission (the "SEC") and effect the registration, qualifications or compliances (including without limitation the execution of any required undertaking to file post-effective by amendments, appropriate qualifications or exemptions under applicable blue sky or other state securities laws and appropriate compliance with applicable laws) as promptly as possible after the SEC for distribution thereof by means of an underwritingfiling thereof, but in any case within 45 days after the Filing. The underwriter Registration Statement will be selected on Form SB-2, provided that if Form SB-2 is not available for use by Company on the Company and shall Filing Date, then the Registration Statement will be reasonably acceptable to the Holderon such form as is then available. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all All expenses incurred in connection with any registration, filing qualification, exemption or qualification of the Shares with respect to the registrations compliance pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and shall be borne by Company. From the fees and disbursements Filing Date through the earlier of one counsel for the selling Holders as selected by them.
(i) The the date that Holder sells or disposes of the Shares or (ii) receives payment for the Equity Buyout under Section 4 (the "Registration Period"), Company covenants and agrees with shall cause the Holder (registration and any subsequent Holders of this Warrant and/or Shares) thatqualification, in the event the Company proposes to file a registration statement exemption or compliance under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) state and federal laws continuously effect with respect to Holder, and keep such Registration Statement free of any class of security which becomes material misstatements or which omissions. During the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration DateRegistration Period, then the Company shall in each case give prompt written notice of such proposed filing to the advise Holder (a) within 2 Business Days when the Registration Statement or any amendment thereto has been filed and when the Registration Statement or amendment has become effective, (b) within 2 Business Days of the issuance by the SEC of any subsequent Holders stop order suspending the effectiveness of this Warrant and/or Sharesthe Registration Statement, and (c) at least sixty (60) days before within 2 Business Days of the proposed filing date and, by such notice, shall offer to such Holders occurrence of any event that requires the opportunity to include making of any changes in such registration statement such number of Shares as they may request in writing.
(ii) The the Registration Statement. Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless at all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall times use its reasonable best efforts to register cause its common stock to be listed on each securities exchange or qualify market on which the stock is listed as of the Issue Date. The Shares, or the common stock into which the Shares for offer are convertible, shall be "Registrable Securities", and Holder shall have the rights of a "Holder" under such investor rights agreement or sale under registration rights agreement as the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) Company may enter into from time to time. If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
Registration Statement (i) To has not been filed with the fullest extent permitted SEC by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements theretoFiling Date, (ii) has not been declared effective by the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleadingSEC within 45 days thereafter, or (iii) after the Registration Statement is declared effective by the SEC, is suspended by Company or ceases to remain continuously effective as to all Shares for which it is required to be effective (a "Registration Default"), for any violation or alleged violation by any other party hereto30-day period (a "Penalty Period") during which the Registration Default remains uncured, Holder may acquire an additional number of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawShares equal to 27,500 shares for each Penalty Period.
Appears in 2 contracts
Samples: Warrant Agreement (Sysview Technology, Inc.), Warrant Agreement (Sysview Technology, Inc.)
Registration Rights. (a) The Company shall file a registration statement If, at any time following the date of this Agreement, Parent proposes or is required to register any of its equity securities under the Securities Act covering the resale of all Shares of the Holder 1933, as soon as practicable following the Holder’s written request to do so, and use its reasonable best efforts to have the amended on a registration statement declared effective by the SEC on Form S-1 or Form S-3 (other than pursuant to registrations on such form or similar form(s) solely for distribution thereof by means registration of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registrationan employee benefit plan or dividend reinvestment plan) or an equivalent general registration form then in effect, filing whether or qualification of the Shares with respect to the registrations pursuant to this Section not for each Holderits own account, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or Parent shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing its intention to do so to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before Sellers. Upon the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may written request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than Sellers, made within 15 days following the Company and the Holders of Piggy-back Shares if the securities receipt of any such person are included therein; providedwritten notice (which request shall specify the maximum amount of Parent Common Stock intended to be disposed of by the Sellers and the intended method of distribution thereof), howeverParent shall use commercially reasonable efforts to cause all such Parent Common Stock (including, that for the Company shall not be required to honor avoidance of doubt, any such request that is received more than sixty (60) days after the proper giving Parent Common Stock issued upon exercise of the Company’s notice Warrants) to be included in the registration statement with the securities that Parent at the time proposes to register to permit the sale or after other disposition by the Expiration DateSellers in accordance with the intended method of distribution thereof of the Parent Common Stock to be so registered. Notwithstanding Parent shall have the right to withdraw any proposed registration at any time and for any reason. The Sellers shall reimburse Parent for any portion of any underwriting or other provision fees attributable to the registration of its Parent Common Stock and shall indemnify Parent for any costs, expenses, or liabilities associated with any registration under this Section 19(b)(ii)5.6 of such Parent Common Stock. The registration rights provided pursuant to this Section 5.6 shall be assignable to any Minority Shareholder who acquires Consideration Shares and/or Warrants directly from one or more Sellers. Each of the TCP Parties agrees that it will take such actions as are reasonably necessary to give effect to the registration rights of the Sellers provided in this Section 5.6, if including by agreeing to cutbacks with respect to its registration rights pursuant to that certain Registration Rights Agreement, dated as of January 28, 2016, by and among Parent, the underwriter advises TCP Parties and the Holder other shareholders of Parent party thereto as necessary to allow Sellers to participate in writing that marketing factors require a limitation any registered offering in which any of the TCP Parties are selling shares in proportion (as nearly as practicable) to the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities sought to be registered pursuant by Sellers relative to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by themTCP Parties.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.
Appears in 2 contracts
Samples: Purchase Agreement (Differential Brands Group Inc.), Purchase Agreement
Registration Rights. (a) The Company shall use its best efforts to prepare and file a registration statement Registration Statement on or before March 30, 2001 (and, as a means of ameliorating the Sellers' market risk in the Registrable Shares but not as additional consideration under the Stock Purchase Agreement, the Company shall pay the Sellers $1,000.00 for each business day after such date that a Registration Statement has not been filed by the Company), providing for the sale of the Registrable Shares by the Sellers pursuant to Rule 415 of the Securities Act covering or any similar rule that may be adopted by the resale of all Shares SEC; however, none of the Holder Sellers shall sell, transfer, pledge or otherwise dispose of any Registrable Shares: (i) before the date on which financial results covering at least thirty (30) days of post-Closing Date (as soon defined in the Stock Purchase Agreement) combined operations of the Company and The Flagship Group, Ltd., a Virginia corporation, have been published by the Company except as practicable otherwise permitted by the Stock Purchase Agreement; (ii) if such sale, transfer, pledge or disposition would prevent the stock purchase pursuant to the Stock Purchase Agreement from being accounted for as a pooling-of-interests; or (iii) while such Registration Statement remains effective, during a period beginning fifteen (15) days before the end of each of the Company's fiscal quarters and ending on the second (2nd) business day following the Holder’s written request next release by the Company to do sothe public of quarterly or annual earnings. The Registration Statement may include other securities of the Company designated by the Company and may include securities of the Company being sold for the account of the Company or others.
(b) The provisions of this Section 2 will be subject to the following conditions:
(i) If at any time after the Company files a Registration Statement hereunder the Company decides to make a public offering of securities through one or more underwriters, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with manage such proposed underwriting advises the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for that it believes that such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to underwritten offering could be underwritten, the number of Shares held adversely affected by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public concurrent registered offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration DateRegistrable Shares pursuant hereto, then the Company shall in each case give prompt written notice may delay or suspend the filing or effectiveness of such proposed filing to the Holder Registration Statement for no more than one hundred eighty (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60180) days before the proposed filing date and, by and during such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities period none of the Company included therein Sellers shall sell, transfer, pledge or as applicable to securities otherwise dispose of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included thereinRegistrable Shares; provided, however, that in the event such public offering of securities by the Company appears probable, the Company and the Sellers agree to negotiate in good faith regarding the possibility of the Company granting "piggyback" rights in favor of the Sellers in connection with such offering.
(ii) If the Company, in its sole discretion, determines that the filing, maintenance of the effectiveness thereof or the fulfillment of any obligation it has hereunder to update, amend or supplement a Registration Statement would be detrimental to the Company, the Company shall not have the right to defer the filing of a Registration Statement hereunder or delay or suspend the effectiveness thereof or suspend or delay fulfilling any obligation it has hereunder to update, amend or supplement a Registration Statement for the period for which such act would be required to honor any detrimental, and during such request that is received more than sixty (60) days after the proper giving period none of the Company’s notice Sellers shall sell, transfer, pledge or after the Expiration Date. Notwithstanding otherwise dispose of any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Registrable Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(isuch period may not exceed more than forty-five (45) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawdays.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Brown & Brown Inc)
Registration Rights. (a) The Company shall file a notify the Holder at least 30 calendar days prior to filing any registration statement under the Securities Act covering for purposes of effecting a public offering of securities of the resale Company (including, but not limited to, a registration statement relating to a secondary offering of securities of the Company, but excluding registration statements relating to any employee benefit plan or a corporate reorganization or a merger, acquisition or similar transaction) and will afford the Holder an opportunity to include in such registration statement all Shares or any part of the shares of Common Stock obtained by the Holder upon exercise of this Warrant (up to a maximum percentage of the offering equal to the percentage of total outstanding Common Stock comprising shares of Common Stock obtained by the Holder upon exercise of this Warrant at that time). If the Holder desires to include in any such registration statement all or any part of the shares of Common Stock obtained by the Holder upon exercise of this Warrant, the Holder shall, within 20 days after receipt of the above-described notice from the Company, notify the Company in writing, and in such notice shall inform the Company of the number of shares of Common Stock the Holder wishes to include in such registration statement. If the Holder decides not to include all of the shares of Common Stock obtained by the Holder upon exercise of this Warrant in any registration statement thereafter filed by the Company, the Holder shall nevertheless continue to have the right to include any of the shares of Common Stock obtained by the Holder upon exercise of this Warrant in any subsequent registration statement or registration statements as may be filed by the Company with respect to offerings of its securities, all upon the terms and conditions set forth herein.
(b) If a registration statement for which the Company gives notice under this Section 5 is for an underwritten offering, then the Company shall so advise the Holder. In such event, the right of the Holder as soon as practicable following to include the shares of Common Stock obtained by the Holder upon exercise of this Warrant in a registration pursuant to this Section 5 shall be conditioned upon the Holder’s written request participation in such underwriting and the inclusion of such shares of Common Stock in the underwriting to do so, and use the extent provided herein. If the Holder proposes to distribute its reasonable best efforts to have the registration statement declared effective shares of Common Stock obtained by the SEC for distribution thereof by means Holder upon exercise of an this Warrant through such underwriting. The underwriter will be selected by the Company and , it shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the managing underwriter or underwriters underwriter(s) selected for such underwriting. Notwithstanding any other provision of this Section 19(a)Warrant, if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitationmanaging underwriter(s) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”determine(s) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing good faith that marketing factors require a limitation of the number of shares to be underwritten, then the managing underwriter(s) may exclude shares (including the shares of Common Stock) from the registration and the underwriting, and the number of Shares held by the Holder to shares that may be included in the registration and the underwriting shall be allocated, first, to the Company, and second, to the Holder and to each other participating stockholder of the Company on a pro rata basis. If the Holder disapproves of the terms of any such underwriting, the Holder may elect to withdraw therefrom by written notice to the Company and the underwriter, delivered at least ten business days prior to the effective date of the registration statement. Any shares of Common Stock excluded or withdrawn from such underwriting shall not be reduced unless all other securities, excluded and withdrawn from the registration.
(c) All selling expenses (other than securities to be registered underwriting discounts, selling commissions and stock transfer taxes and all legal fees and expenses of legal counsel of the Holder and any other participating stockholder) incurred in connection with a registration pursuant to this Section 5 shall be borne by the Company. If the Holder participates in a registration rights granted pursuant to this Section 5, the Holder shall bear its proportionate share (based on the total number of shares sold in the 2008 SPA (the “Other Shares”) and securities to be offered such registration other than for the account of the Holders Company) of the New Warrants all underwriting discounts, selling commissions and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses stock transfer taxes incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations a registration pursuant to this Section for each Holder5. The Holder shall furnish the Company, including (without limitation) in writing, all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares information that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise may request or as may be required by the Warrant for at least SEC or applicable law concerning the number plan and method of Shares to be included in such piggy-back offering prior to distribution by the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designateHolder.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.
Appears in 2 contracts
Samples: Class a Common Stock Purchase Warrant (Nextera Enterprises Inc), Class a Common Stock Purchase Warrant (Nextera Enterprises Inc)
Registration Rights. If at any time after the Closing Date there is not an effective registration statement covering all of the then issued and outstanding Shares and Warrant Shares (athe “Registrable Securities”) The and the Company shall determines to prepare and file with the SEC a registration statement relating to an offering for its own account or the account of others under the Securities Act covering of any of its equity securities, but excluding Forms S-4 or S-8 and similar forms which do not permit such registration, then the resale Company shall send to each holder of all Shares any of the Holder as soon as practicable following Registrable Securities written notice of such determination and, if within fifteen calendar days after receipt of such notice, any such holder shall so request in writing, the Holder’s written request to do so, and use its reasonable best efforts to have the Company shall include in such registration statement declared effective all or any part of the Registrable Securities, provided that the inclusion of such Registrable Securities will be subject to customary underwriter cutbacks applicable to all holders of registration rights and minimum cutbacks in accordance with guidance provided by the SEC for distribution thereof by means of an underwritingSecurities and Exchange Commission (including, but not limited to, Rule 415). The underwriter will be selected by obligations of the Company and shall under this Section may be reasonably acceptable waived by any holder of any of the Registrable Securities entitled to the Holderregistration rights under this Section 9. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter holders whose Registrable Securities are included or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder required to be included in such underwriting registration statement are granted the same rights, benefits, liquidated or other damages and indemnification granted to other holders of securities included in such registration statement. In no event shall not the liability of any holder of Registrable Securities or permitted successor in connection with any Registrable Securities included in any such registration statement be reduced unless greater in amount than the dollar amount of the net proceeds actually received by such holder upon the sale of the Registrable Securities sold pursuant to such registration or such lesser amount in proportion to all other securities are first entirely excluded from holders of Registrable Securities included in such registration statement. All expenses incurred by the underwriting. The Company shall bear in complying with Section 9, including, without limitation, all registration and pay all filing fees, printing expenses (if required), fees and disbursements of counsel and independent public accountants for the Company, fees and expenses (including reasonable counsel fees) incurred in connection with any registrationcomplying with state securities or “blue sky” laws, filing or qualification fees of the Shares FINRA, transfer taxes, and fees of transfer agents and registrars, are called “Registration Expenses.” All underwriting discounts and selling commissions applicable to the sale of Registrable Securities are called "Selling Expenses." The Company will pay all Registration Expenses in connection with the registration statement under Section 9. Selling Expenses in connection with each registration statement under Section 9 shall be borne by the holder and will be apportioned among such holders in proportion to the number of Registrable Securities included therein for a holder relative to all the securities included therein for all selling holders, or as all holders may agree. It shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respect to the registrations Registrable Securities of a particular holder that such holder shall furnish to the Company in writing such information and representation letters, including a completed form of a securityholder questionnaire, with respect to itself and the proposed distribution by it as the Company may reasonably request to assure compliance with federal and applicable state securities laws. Shares shall cease to be Registrable Securities pursuant to this Section for each Holder, including 9 upon the earliest to occur of the following: (without limitationA) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes a sale pursuant to file a registration statement or Rule 144 under the Securities Act (includingin which case, only such security sold by the holder shall cease to be a Registrable Security); or (B) becoming eligible for resale by the holder under Rule 144 without limitation, relating to an initial public offering of Company Common Stock or shall receive a request the requirement for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on to be in compliance with the current public information required thereunder and without volume or after the Initial Exercise Date and on or before the Expiration Datemanner-of-sale restrictions, then the Company shall in each case give prompt pursuant to a written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer opinion letter to such Holders the opportunity effect, addressed, delivered and acceptable to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by themtransfer agent.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.
Appears in 2 contracts
Samples: Purchase Agreement (Lithium Exploration Group, Inc.), Purchase Agreement (Lithium Exploration Group, Inc.)
Registration Rights. (a) The Company In the event that the Grantee shall file desire to sell any of the Shares within two years after the purchase of such Shares pursuant hereto, and such sale requires, in the opinion of counsel to the Grantee, which opinion shall be reasonably satisfactory to the Grantor and its counsel, registration of such Shares under the Securities Act, the Grantor will cooperate with the Grantee and any underwriters in registering such Shares for resale, including, without limitation, promptly filing a registration statement under which complies with the Securities Act covering the resale requirements of all Shares of the Holder as soon as practicable following the Holder’s written request to do soapplicable federal and state securities laws, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter entering into an underwriting agreement with such underwriters upon such terms and conditions as are customarily contained in a customary form underwriting agreements with respect to secondary distributions; provided that the underwriter Grantor shall not be required to have declared effective more than two registration statements hereunder and shall be entitled to delay the filing or underwriters selected effectiveness of any registration statement for such underwriting. Notwithstanding up to 60 days if the offering would, in the judgment of the Board of Directors of the Grantor, require premature disclosure of any other provision material corporate development or material transaction involving the Grantor or interfere with any previously planned securities offering by the Company.
(b) If the Common Stock is registered pursuant to the provisions of this Section 19(a)9, if the underwriter advises the Holder in writing that marketing factors require a limitation Grantor agrees (i) to furnish copies of the number of registration statement and the prospectus relating to the Shares to be underwritten, the number of Shares held by the Holder to be included covered thereby in such underwriting numbers as the Grantee may from time to time reasonably request, and (ii) if any event shall not occur as a result of which it becomes necessary to amend or supplement any registration statement or prospectus, to prepare and file under the applicable securities laws such amendments and supplements as may be reduced unless all other necessary to keep available for at least 45 days a prospectus covering the Common Stock meeting the requirements of such securities are first entirely excluded from laws, and to furnish the underwritingGrantee such numbers of copies of the registration statement and prospectus as amended or supplemented as may reasonably be requested. The Company Grantor shall bear and pay all expenses incurred in connection with any the cost of the registration, including, but not limited to, all registration and filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holderfees, including (without limitation) all registration, filingprinting expenses, and qualification feesfees and disbursements of counsel and accountants for the Grantor, printers and accounting fees relating or apportionable thereto and except that the Grantee shall pay the fees and disbursements of one counsel for its counsel, and the underwriting fees and selling Holders as selected by them.
(i) The Company covenants and agrees with commissions applicable to the Holder (and any subsequent Holders shares of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held sold by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offeringGrantee. The Company Grantor shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless (i) Grantee, its affiliates and its officers and directors, and (ii) each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, person who controls such Holder or any underwriter within the meaning of the Securities Act or the Securities Exchange ActAct of 1934, as amended (collectively, the "Underwriters") ((i) and (ii) being referred to as "Indemnified Parties") against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, liabilities or liabilities (joint or several) expenses, to which a party hereto the Indemnified Parties may become subject under the Securities Act, the Exchange Act or other federal or state lawsubject, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) and expenses arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement statement, of a any material fact contained or incorporated by reference in such any registration statementstatement filed pursuant to this paragraph, including any preliminary prospectus or final prospectus contained therein arise out of or any amendments or supplements thereto, (ii) are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the Grantor will not be liable in any such case to the extent that any such loss, liability, claim, damage or expense arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any such documents in reliance upon and in conformity with written information furnished to the Grantor by the Indemnified Parties expressly for use or incorporation by reference therein.
(c) The Grantee and the Underwriters shall indemnify and hold harmless the Grantor, its affiliates and its officers and directors against any losses, claims, damages, liabilities or expenses to which the Grantor, its affiliates and its officers and directors may become subject, insofar as such losses, claims, damages, liabilities (or actions in respect thereof) and expenses arise out of or are based upon any untrue statement of any material fact contained or incorporated by reference in any registration statement filed pursuant to this paragraph, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (iii) any violation in each case to the extent, but only to the extent, that such untrue statement or alleged violation untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Grantor by any other party heretothe Grantee Grantee or the Underwriters, of the Securities Actas applicable, the Exchange Act, any state securities law specifically for use or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawincorporation by reference therein.
Appears in 2 contracts
Samples: Stock Option Agreement (Orion Capital Corp), Stock Option Agreement (Royal Group Inc/)
Registration Rights. (a) The Company shall file a In connection with the initial public offering of City's equity securities, City will promptly give notice to each City Holder and will include in such registration statement under the Securities Act covering for such offering (and any related qualification under blue sky laws or other compliance), and any related underwriting, all the resale City Common Stock (subject to cutback as set forth in Section 5.16(b)) specified in a written request or requests made within twenty (20) days after receipt of all Shares such written notice from City by any City Holder. In the event of any recapitalization of the City Common Stock, the rights of the City Holders pursuant to this Section 5.16 shall apply to any securities issued in such recapitalization to the City Holders.
(b) The right of any City Holder as soon as practicable following the Holder’s written request to do so, and use its reasonable best efforts registration pursuant to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and this Section 5.16 shall be reasonably acceptable conditioned upon such City Holder's participation in such offering and the inclusion of shares of City Common Stock in such registration to the Holderextent provided herein. The If any City Holder proposes to distribute its securities through such offering, such City Holder shall (together with the Company as provided herein belowCity) enter into an underwriting agreement in a customary form with the managing underwriter or underwriters selected for such underwritingoffering by City. Notwithstanding any other provision of this Section 19(a)5.16, if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing determines that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held managing underwriter may limit the City Common Stock to be sold by the Holder to be included City Holders in such underwriting offering; provided that no such reduction shall not be reduced unless all other securities, other than made with respect to securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be being offered by City for the its own account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on shares of City Common Stock to be sold by the one hand, City Holders in such offering shall be reduced to zero. City shall so advise the City Holders and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to shares of City Common Stock that may be included in the registration and underwriting shall be allocated among the City Holders in proportion, as nearly as practicable, to the respective amounts of City Common Stock held by the City Holders at the time of filing of the registration statement. To facilitate the allocation of shares in accordance with the above provisions, City or the underwriters may round the number of shares allocated to the City Holders to the nearest 100 shares.
(c) The rights of any City Holder to receive notice and to participate in a registration pursuant to the terms of this Section 5.16 shall terminate at such offering. The Company time as such City Holder could sell all of the City Common Stock held by such City Holder in any one three-month period under the terms of Rule 144(k) under the Securities Act.
(d) City shall bear and pay all expenses incurred related to any offering pursuant to this Section 5.16 (other than underwriting discounts, selling commissions and transfer and stamp taxes for shares of City Common Stock sold by any City Holder and any fees and disbursements of counsel to any City Holder).
(e) City and each City Holder will provide customary indemnification with respect to a registration effected pursuant to this Section 5.16
(f) Each City Holder selling City Common Stock included in any registration effected pursuant to this Section 5.16 shall furnish to City such information, including information regarding such City Holder, the City Common Stock held by them and the distribution proposed, as City may request in writing to enable City to comply with the provisions hereof in connection with any registration, filing qualification or qualification of the Shares with respect compliance referred to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law5.16.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Ticketmaster Online Citysearch Inc), Agreement and Plan of Reorganization (Usa Networks Inc)
Registration Rights. 1.10.1 At any time after the execution of this Agreement, Lender shall, subject to all of the provisions of this Section 1.10, if requested in writing to do so by Borrower, file with the Securities and Exchange Commission under the Securities and Exchange Act of 1933, as amended (a) The Company shall file the "Act"), a registration statement under the Securities Act on an appropriate form covering the resale 1,379,310 Shares (the "Shares") of all Shares Common Stock issuable upon conversion of the Holder as soon as practicable following the Holder’s written request Loan which Lender requests to do so, and use its reasonable best efforts to have be registered. Borrower shall keep effective the registration statement declared filed pursuant to this subsection 1.10.1 during the period commencing on the initial effective by date of such registration statement and ending on the SEC for distribution thereof by means earlier of an underwriting. The underwriter will be selected by (i) eighteen (18) months thereafter or (ii) the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation completion of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification sale of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected owned by themLender which are covered thereby.
(i) The Company covenants and agrees with the Holder (and 1.10.2 If at any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes time or times Borrower shall propose to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering covering any of Company its Common Stock or shall receive a request for registration on Form S-3 from being sold by any stockholder) with respect to any class stockholder of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration DateBorrower, then the Company shall in Borrower agrees that it shall, each case such time, give prompt written notice to Lender of such proposal not later than twenty (20) business days prior to the date such registration statement is proposed to be filed and such notice shall offer Lender the opportunity to register its Shares therein. Upon the written request of Lender, which request must be received by Borrower no fewer than seven (7) business days prior to the date of such proposed filing and must specify the number of Shares it is requesting to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include be included in such registration statement such number of Shares as they may request in writing.
(ii) The Company statement, Borrower shall permitinclude therein, or shall cause the managing underwriter or underwriters, if any, of a proposed underwritten offering to permitinclude therein, the Holders from whom such written requests have been received to include such number of Shares (on the “Piggy-back Shares”) in the proposed offering on same terms and conditions no less favorable to the Holders as the terms and conditions applicable other common stock included in such registration statement. Borrower agrees that it shall keep effective any registration statement which pursuant to securities this subsection 1.10.2 includes any of the Company included therein Shares during the period commencing on the initial effective date of such registration statement and ending on the earlier of (i) eighteen (18) months thereafter and (ii) the completion of the sale of the Shares which are covered thereby.
1.10.3 If the managing underwriter or as applicable underwriters of an underwritten public offering made pursuant to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, registration statement pursuant to Section 1.10 above delivers a written opinion to Lender that the Company shall not be required total number or kind of securities which Lender and any other person or entities intend to honor any include in such request that is received more than sixty offering would materially and adversely affect the success of such offering (60) days after including, without limitation, the proper giving marketing of the Company’s notice or after the Expiration Date. Notwithstanding any other provision shares of this Section 19(b)(iiCommon Stock to be sold thereunder), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, then the number of Shares held by the Holder of Lender and such other persons or entities to be included in such underwriting shall not offering may be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in extent necessary to reduce the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the total number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number shares of Piggy-back Shares and Other Shares requested common stock to be included in such offeringoffering to the number recommended by such managing underwriter. The Company Any such reduction shall bear be a proportionate reduction to all such persons based upon the number of shares proposed to be registered by each such person.
1.10.4 Borrower's obligations under this Section 1.10 with respect to Lender shall be conditioned upon such Lender's furnishing to Borrower such information and pay all expenses incurred material as may be reasonably requested by Borrower or its counsel in connection with such registration statement and any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holderpublic offering thereunder, including (without limitation) all registration, filing, information and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall material concerning Lender as may be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares required to be included in such piggy-back registration statement under the Act and the applicable rules and regulations of the Securities and Exchange Commission, and upon the further condition that Lender shall undertake to take all reasonable steps to comply with the Act and the applicable rules and regulations thereunder and with the securities laws of the states in which any such public offering prior is made. Borrower agrees to take all reasonable steps to comply in all respects with the Act and all applicable rules and regulations thereunder and with the securities laws of the states in which any such public offering is made.
1.10.5 Borrower shall bear all costs and expenses in connection with any registration statement demanded by Lender pursuant to Section 1.10.1 hereof, and of each registration statement filed pursuant to Section 1.10.2 hereof, including the fees and expenses for the audited and other financial statements of Borrower included in such registration statements, and the expenses of printing, filing, legal and Blue Sky and other similar expenses. In connection with any registration statement pursuant to Section 1.10 including any Shares owned by Lender, Borrower agrees to take all reasonable steps to comply with such Blue Sky or state securities laws as may be reasonably requested by Lender (except that it shall in no event be required to qualify as a foreign corporation or give a general consent to the consummation service of process), and to furnish to Buyer such piggy-back offering. The Company shall use its reasonable best efforts number of prospectuses or other documents incident to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designateregistration as it may from time to time reasonably request.
(iv) If the Company decides not 1.10.6 In connection with any registration statement which pursuant to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering this Section 1.10 includes any of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company Borrower will indemnify and hold harmless each HolderLender against and in respect of any losses, the partnersclaims, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter damages or liabilities (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any including legal or other expenses reasonably incurred by Lender in connection with investigating or defending any such loss, claim, damage, liability or action), to which Lender may become subject under the Act or otherwise insofar as such losses, claims, damages or liabilities (or actions with respect thereto) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such registration statement, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading.
1.10.7 In connection with any registration statement which pursuant to this Section 1.10 includes any of the Shares, Lender will indemnify and hold harmless Borrower, its officers and its directors and any controlling persons of Borrower against and in respect of any losses, claims, damages or liabilities (including legal or other expenses reasonably incurred by any of them in connection with investigating or defending any such loss, claim, damage, liability, liability or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or severalaction) to which a party hereto Borrower or any such persons may become subject under the Securities Act, the Exchange Act or other federal or state law, otherwise insofar as such losses, claims, damages, damages or liabilities (or actions in with respect thereofthereto) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein arise out of or any amendments or supplements thereto, (ii) are based upon the omission or alleged omission to state therein a material fact required to be stated therein, therein or necessary to make the statements statement therein not no misleading, but only to the extent that any such untrue statement or omission is based upon information furnished in writing to Borrower by Lender or any of its authorized representatives for inclusion in such registration statement.
1.10.8 Any party(ies) seeking indemnification (iiithe "Indemnitee") shall give prompt written notice to the party(ies) from whom it is seeking indemnification (the "Indemnitor") of any violation claim by the Indemnitee against the Indemnitor based on the indemnities contained in Sections 1.10.6 and 1.10.7 hereof, or alleged violation any claim against the Indemnitee, which might give rise to a claim based on the aforesaid indemnitees, stating the nature and basis of such claim and the amount thereof. Failure by the Indemnitee to give the Indemnitor prompt written notice of any other party heretosuch claim shall not release the Indemnitor from liability with respect thereto unless such failure to give notice has a materially adverse effect on the Indemnitor's ability to defend such claim. Prompt written notice shall mean within thirty (30) days after the Indemnitee receives notice of the claim from the person asserting the claim. The Indemnitee shall permit the Indemnitor a reasonable opportunity to assume the defense, settlement or compromise (herein called "defense" or "defend"), of any such claim. Failure by the Securities ActIndemnitor to notify the Indemnitee of its election to defend within thirty (30) days after such notice thereof shall have been given shall be deemed a waiver by the Indemnitor of its right to defend any such claim. If the Indemnitor elects to defend such claim, it shall do so at its expense through counsel or other representatives of its own choosing. If Lender is involved in such action, suit or proceeding it shall make available to Borrower, its attorneys and accountants all books and records relating to any such action, suit or proceeding, and Borrower shall make available to Lender, its attorneys and accountants, all books and records of Borrower relating to any such action, suit or proceeding, as the Exchange Actcase may be. Lender and Borrower agree to render to each other such assistance as may reasonably be required in order to insure the proper and adequate defense of any such action, suit or proceeding.
1.10.9 Lender shall not make any state securities law or settlement of any rule or regulation promulgated claims which might give rise to liability of Borrower under the Securities Actindemnities contained in Section 10.1.6 hereof, without the Exchange Act or prior written consent of Borrower, which consent shall not be unreasonably withheld. Borrower shall not make any state securities lawsettlement of any claims which might give rise to liability of Lender under the indemnities contained in Section 10.1.7 hereof, without the prior written consent of the Lender, which consent shall not be unreasonably withheld.
Appears in 2 contracts
Samples: Credit Agreement (Image Entertainment Inc), Credit Agreement (Image Investors Co)
Registration Rights. (a) The Company Registered Holder shall file a registration statement under the Securities Act covering the resale of all Shares of the Holder as soon as practicable following the Holder’s written request to do so, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares rights with respect to the registrations pursuant to this Warrant Shares as specified in Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and 9 of the fees and disbursements of one counsel for the selling Holders as selected by themSecond Extension Agreement.
(ib) The Company covenants and agrees with Furthermore, the Registered Holder (and any subsequent Holders of this shall be entitled to "piggyback" registration rights for so long as the Registered Holder shall own Warrant and/or Shares) that, in the event . Whenever the Company proposes to file a registration statement Registration Statement (other than pursuant to subsection 19(a) at any time and from time to time, it will, prior to such filing, give written notice to the Registered Holder of its intention to do so and, upon the written request of the Registered Holder given within 20 days after the Company provides such notice (which request shall state the intended method of disposition of such Registrable Shares), the Company shall use its best efforts to cause all Registrable Shares which the Company has been requested by such Registered Holder to register to be registered under the Securities Act (including, without limitation, relating to an initial public offering the extent necessary to permit their sale or other disposition in accordance with the intended methods of Company Common Stock or shall receive a distribution specified in the request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then Registered Holder; provided that the Company shall in each case give prompt written notice of such proposed filing have the right to postpone or withdraw any registration effected pursuant to this subsection 19(b) without obligation to the Registered Holder (and or any subsequent Holders of persons or entities to which the rights under this Warrant and/or Shares) at least sixty (60) days before are transferred by the proposed filing date andRegistered Holder, by such notice, shall offer its successors or assigns pursuant to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writingSection 13 hereof.
(iic) The Company shall permitIn connection with any registration under subsection 19(b) involving an underwriting, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor include any Registrable Shares in such request that is received more than sixty (60) days after registration unless the proper giving holders thereof accept the terms of the Company’s notice or after underwriting as agreed upon between the Expiration DateCompany and the underwriters selected by it (provided that such terms must be consistent with this Warrant). Notwithstanding any other provision If in the opinion of this Section 19(b)(ii), if the managing underwriter advises the Holder in writing that it is appropriate because of marketing factors require a limitation of to limit the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Registrable Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The , then the Company shall use its reasonable best efforts be required to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined include in the Securities Act) for such Holder and each personregistration only that number of Registrable Shares, if any, which the managing underwriter believes should be included therein. If the number of Registrable Shares to be included in the offering in accordance with the foregoing is less than the total number of shares which the holders of Registrable Shares have requested to be included, then the holders of Registrable Shares who controls such Holder or underwriter within the meaning have requested registration and other holders of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay securities entitled to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by include them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including shall participate in the registration pro rata based upon their total ownership of shares of Common Stock (giving effect to the conversion into Common Stock of all securities convertible thereinto). If any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission holder would thus be entitled to state therein a material fact required include more securities than such holder requested to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Actregistered, the Exchange Act, any state securities law or any rule or regulation promulgated under excess shall be allocated among other requesting holders pro rata in the Securities Act, manner described in the Exchange Act or any state securities lawpreceding sentence.
Appears in 2 contracts
Samples: Common Stock Purchase Warrant (Igi Inc), Warrant Agreement (Igi Inc)
Registration Rights. A. If at any time prior to the expiration of seven (a7) The years from the date hereof, the Company shall proposes to file a registration statement any Registration Statement under the Securities 1933 Act covering the resale a public offering of all Shares any of the Holder as soon as practicable following Company's securities (except by a Form S-4 or Form S-8 Registration Statement or any successor forms thereto), it will give written notice to all Holders of this Warrant, any Warrants issued pursuant to Section 2 and/or Section 3(a) hereof, and any securities issuable upon exercise of this Warrant or the Holder’s Class A Warrants of its intention to do so and, on the written request of any such Holder given within twenty (20) days after receipt of any such notice (which request shall specify the interest in this Warrant or the securities issuable upon exercise of this Warrant or the Class A Warrants intended to do sobe sold or disposed of by such Holder and describe the nature of any proposed sale or other disposition thereof), and the Company will use its reasonable best efforts to cause all such securities, the Holders of which shall have requested the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a)qualification thereof, if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such registration statement proposed to be filed by the Company; provided, however, that nothing herein shall prevent the Company from, at any time, abandoning or delaying any registration. If any registration pursuant to this Section 9(a) is underwritten in whole or in part, the Company may require that the securities requested for inclusion pursuant to this Section 9(a) be included in the underwriting on the same terms and conditions as the securities otherwise being sold through the underwriters. If a greater number of securities is offered for participation in the proposed offering than in the reasonable opinion of the managing underwriter of the proposed offering can be accommodated without adversely affecting the proposed offering, then the amount of securities proposed to be offered by such Holders for registration, as well as the number of securities of any other selling shareholders participating in the registration, shall be proportionately reduced to a number deemed satisfactory by the managing underwriter.
B. Further, at any time prior to the expiration of this Warrant, and provided that a registration statement on Form S-3 (or any successor form thereto) is then available to the Company, and on a one-time basis only, upon request by the Holder or Holders of a majority in interest of any securities originally issuable under this or any warrant issued to the Underwriter or any affiliate in connection with the sale of shares pursuant to the Underwriter Agreement Underwriter (whether or not then issued) and any Warrants issued pursuant to Section 2 and/or Section 3(a) hereof, the Company will promptly take all necessary steps to register or qualify, under the 1933 Act and the securities laws of such states as the Holders may reasonably request, such number of securities issued and to be reduced unless issued upon conversion of the Warrants requested by such Holders in their request to the Company. In addition, upon the receipt of such request, the Company shall promptly give written notice to all other record Holders of the securities are first entirely excluded from not theretofore registered under the underwritingSecurities Act and sold that such registration is to be effected. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such securities for which it has received written requests have been received to include register by such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the other record Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) within 30 days after the proper giving delivery of the Company’s 's written notice or after the Expiration Dateto such other record Holders. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated to prepare, file and cause to become effective only one registration statement pursuant to this Section 19(b)(iii9(b) and to include in pay the piggy-back offering Shares that have not yet been purchased by a Holder so long as costs and expenses associated with such Holder submits an undertaking registration statement to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included extent provided in such piggy-back offering prior to the consummation of such piggy-back offeringSection 9(c). The Company shall use its reasonable best efforts to register keep effective and maintain any registration, qualification, notification, or qualify approval specified in this Paragraph (b) for a period of one hundred twenty (120) days or the Shares for offer or sale under the state date on which all securities or Blue Sky laws of such states which the Holders of such Shares shall designateare sold, whichever is earlier.
(iv) If the Company decides not C. With respect to proceed with the piggy-back offeringeach inclusion of securities in a registration statement pursuant to this Section 9, the Company will have no obligation to proceed with shall bear the offering following fees, costs, and expenses: all registration, filing and NASD fees, printing expenses, fees and disbursements of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for the Company, fees and disbursements of counsel for the underwriter or underwriters of such securities (if the Company is required to bear such fees and disbursements), all internal expenses, the premiums and other costs of policies of insurance for the benefit of the Company and/or its directors and officers against liability arising out of the public offering, and legal fees and disbursements and other expenses of complying with state securities laws of any jurisdictions in which the securities to be offered are to be registered or qualified. Fees and disbursements of special counsel and accountants for the selling Holders, underwriting discounts and commissions, and transfer taxes for selling Holders shall be borne by the selling Holders.
D. The Company hereby indemnifies each Holderof the Holders of this Warrant and of any securities issued upon exercise thereof or the Class A Warrant, any underwriter (as defined in and the Securities Act) for such Holder officers and each persondirectors, if any, who controls control such Holder or underwriter Holders, within the meaning of Section 15 of the Securities Act or the Exchange 1933 Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means all losses, claims, damages, or and liabilities caused by (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i1) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus Registration Statement or final prospectus contained therein Prospectus (and as amended or supplemented if the Company shall have furnished any amendments thereof or supplements thereto), any Preliminary Prospectus or any state securities law filings; (ii2) the any omission or alleged omission to state therein a material fact required to be stated therein, therein or necessary to make the statements therein not misleadingmisleading except insofar as such losses, claims, damages, or (iii) liabilities are caused by any violation untrue statement or omission contained in information furnished in writing to the Company by such Holder expressly for use therein; and each such Holder by its acceptance hereof severally agrees that it will indemnify and hold harmless the Company, each of its officers who signs such Registration Statement, and each person, if any, who controls the Company, within the meaning of Section 15 of the 1933 Act, with respect to losses, claims, damages, or liabilities which are caused by any untrue statement or alleged violation untrue statement, omission or alleged omission contained in information furnished in writing to the Company by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawsuch Holder expressly for use therein.
Appears in 2 contracts
Samples: Underwriting Agreement (Hypertension Diagnostics Inc /Mn), Underwriting Agreement (Hypertension Diagnostics Inc /Mn)
Registration Rights. (a) The Section 5.1 On or before August 1, 2000, the Company shall file a registration statement under on Form S-3 (or on such other form as may be available to the Securities Act covering Company) (the resale of all Shares "Registration Statement") with the SEC for the public sale of the Holder as soon as practicable following Shares and the Holder’s written request Warrant Shares. For the purpose of certainty, the Investor shall not be obligated to do so, and exercise the Warrant in order for the Registration Statement to cover the Warrant Shares.
Section 5.2 The Company shall use its reasonable best efforts to have cause such Registration Statement to become effective not later than 50 days after the registration statement declared effective by the SEC for distribution thereof by means date of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification feesto remain effective until the Warrant Shares are eligible for sale under Rule 144(k) of the Securities Act. The Investor acknowledges that the occurrence of material events may require that the Registration Statement be amended before further sales are permitted thereunder, printers and accounting fees relating or apportionable thereto and in which case the fees and disbursements of one counsel for the selling Holders as selected by themCompany will promptly effect such amendment.
(i) Section 5.3 The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or Registration Statement shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, be accompanied by such notice, shall offer to such Holders the opportunity to include blue sky clearances in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders states as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; Investor may reasonably request, provided, however, that the Company shall not be required to honor execute any general consent to service of process in order to obtain such request blue sky clearance, except in a jurisdiction where the Company is already subject to such process.
Section 5.4 The Company shall pay all expenses associated with the registration of the Shares and the Warrant Shares including reasonable fees of one law firm which represents the Investor and all due diligence costs, up to an amount not in excess of $15,000 for the aggregate of such fees and costs, but the Company shall not pay the Investor's brokerage commissions and underwriting discounts or the expense of any advisors retained by the Investor (other than one law firm as provided above).
Section 5.5 The Company shall supply to the Investor a reasonable number of copies of all registration materials and prospectuses relating to the registration of the Shares and the Warrant Shares. The Company and the Investor shall execute and deliver to each other indemnity agreements that is received more than sixty (60) days after are conventional in transactions of this type. The Investor shall cooperate with the proper giving Company in the preparation and filing of the Registration Statement and appropriate amendments thereto.
Section 5.6 Notwithstanding the effectiveness of any Registration Statement, the Investor will not prior to October 1, 2000 sell any of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held 's stock covered by the Holder to be included Registration Statement in a public offering or on any exchange which such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. stock is traded.
Section 5.7 The Company shall bear and pay at all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company times file such public reports as shall be obligated pursuant required to this Section 19(b)(iii) to include in satisfy the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement current public information requirements contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, Rule 144 of the Securities Act, shall not hinder or delay any sales under such Rule, or permit or suffer its counsel to hinder or delay any such sales. The Company shall pay the Exchange Act, fees and expenses of its counsel in connection with any state securities law or any rule or regulation promulgated under such sales.
Section 5.8 Time is of the Securities Act, the Exchange Act or any state securities lawessence for purposes of this Section 5.
Appears in 2 contracts
Samples: Stock Purchase Agreement (A Consulting Team Inc), Stock Purchase Agreement (A Consulting Team Inc)
Registration Rights. (a) The Company shall (i) If Plastinum at any time proposes to file with the SEC a registration statement under the Securities Act covering on any form for the resale general registration of all Shares securities to be sold for cash (a “Registration Statement”) with respect to any of its shares of Common Stock (whether to be sold by Plastinum or by other stockholders), it will give written notice (a “Piggyback Notice”) to the Consultant at least thirty (30) days before the initial filing of such Registration Statement, which notice shall set forth the intended method of disposition of the Holder securities proposed to be registered. The notice shall offer to include in such filing such aggregate number of shares of Warrant Stock as soon as practicable following the Holder’s written request to do so, and use its reasonable best efforts Consultant may request. If the Consultant desires to have the registration statement declared effective by the SEC for distribution thereof by means shares of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of Warrant Stock registered under this Section 19(a)11, if the underwriter advises the Holder it shall advise Plastinum in writing that marketing factors require a limitation ten (10) days after the date of receipt of such offer from Plastinum, setting forth the number of Shares to be underwrittenshares of Warrant Stock for which registration is requested. Plastinum shall thereupon include in such filing the aggregate number of Warrant Stock for which registration is so requested by the Consultant.
(ii) If the managing underwriter of a proposed public offering shall advise Plastinum in writing that, in its opinion, the number distribution of Shares the shares of Warrant Stock held by the Holder Consultant which have been requested to be included in the Registration Statement concurrently with the Common Stock being registered for Plastinum under clause (i) above would adversely affect the distribution of such underwriting securities, then the number of shares of Common Stock which the Consultant shall not be reduced unless all other securities are first entirely excluded from permitted to include in the underwriting. The Company Registration Statement shall bear and pay all expenses incurred be limited to such amount as in connection with any registration, filing or qualification the opinion of the Shares with respect underwriter necessary to provide for the orderly distribution of such securities.
(iii) All expenses of registrations under this subparagraph (a) of this Section 11 related to the registrations pursuant registration of Warrant Stock shall be borne by Plastinum, other than underwriting discounts, selling commissions and stock transfer taxes applicable to this Section for each Holderthe sale of Common Stock, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and which shall be paid by the fees and disbursements of one counsel for the selling Holders as selected by themConsultant.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date andConsultant, by such notice, shall offer to such Holders the opportunity to include participating in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect agrees to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each HolderPlastinum, the partners, members, its subsidiaries and their directors and officers, directors and stockholders each other person, if any, who controls Plastinum within the meaning of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act, each other person (including each underwriter) for who participated in the offering of such Holder securities and each other person, if any, who controls such Holder participating person against any losses, claims, damages or underwriter liabilities, joint or several, to which Plastinum, its subsidiaries or any such director or officer or any such person may become subject under the Securities Act or any other statute or at common law insofar as such losses, claims, damages or liabilities (or actions in respect thereof), arise out of or are based upon information in writing provided to Plastinum or its subsidiaries by the Consultant specifically for use in any Registration Statement under which such shares of Common Stock were registered under the Securities Act, any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereto.
(ii) Plastinum agrees to indemnify and hold harmless the Consultant, its subsidiaries and their directors and officers, each other person, if any, who controls the Consultant within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damagesdamages or liabilities, or liabilities (joint or several) , to which a party hereto the Consultant, its subsidiaries or any such director or officer or any such person may become subject under the Securities Act, the Exchange Act or any other federal statute or state at common law, insofar as such losses, claims, damages, damages or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a any material fact contained in such registration statement, including any preliminary prospectus the Registration Statement or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, therein or necessary to make the statements therein not misleading; provided, however, that Plastinum will not be liable in any such case to the extent that such loss, claim, damage or liability arises out of or is based upon written information provided to Plastinum or its subsidiaries by the Consultant specifically for use in any Registration Statement under which such shares of Common Stock were registered under the Securities Act at the request of such holder, any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereto.
(iii) any violation The Consultant shall, if requested by Plastinum, enter into an underwriting agreement or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawsimilar agreement containing customary indemnification provisions substantially similar to those in this Section 11.
Appears in 2 contracts
Samples: Warrant to Purchase Common Stock (New Generation Holdings Inc), Warrant to Purchase Common Stock (Plastinum Corp)
Registration Rights. (a) The Company shall currently intends to file a an additional registration statement under the Securities Act covering the resale of all Shares of the Holder as soon as practicable following after the Holder’s written request effective date of the SB-2. The Company intends to do so, include the Registrable Securities in such registration statement. The Company does not hereby make any representations as to the date on which the filing of such registration will be made. When the Company determines to proceed with the actual preparation and use its reasonable best efforts to have the filing of such registration statement declared effective under the Act, in connection with the proposed offer and sale of any of its common stock by the SEC for distribution thereof by means it or any of an underwriting. The underwriter will be selected by its security holders, the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company will, except as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for provided, cause all such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder Registrable Securities to be included in such underwriting registration statement, all to the extent required to permit the sale or other disposition by the prospective seller or sellers of the Registrable Securities to be so registered; provided, further, that nothing herein shall not be reduced unless all other securities are first entirely excluded from prevent the underwriting. The Company shall bear and pay all expenses incurred in connection with from, at any time, abandoning or delaying any registration. If the offering is underwritten, filing or qualification of the Shares with respect to the registrations Registrable Securities included in any registration pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, 3.2 shall be included in the event underwriting on the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on same terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities otherwise being sold through the underwriters thereof. If in the good faith judgment of the Company included therein or as applicable to securities managing underwriter, if any, of any person other than such public offering the Company and the Holders inclusion of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving all of the Registrable Securities (the "Requested Stock") would interfere with the successful marketing of the shares of stock offered by the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder Requested Stock otherwise to be included in such underwriting the underwritten public offering may be reduced pro rata (by number of shares) among the holders thereof or excluded in their entirety if so required by the underwriter. To the extent only a portion of the Requested Stock is included in the underwritten public offering, those shares of Requested Stock which are thus excluded from the underwritten public offering shall be withheld from the market by the holders thereof for a period, not to exceed 270 days, which the managing underwriter reasonably determines is necessary in order to effect the underwritten public offering. The obligation of the Company under this Section 3.2 shall not be reduced unless all other securities, other than securities apply to be registered Registrable Securities that at such time are eligible for immediate resale pursuant to the registration rights granted in the 2008 SPA Rule (the “Other Shares”without regard to volume limitations).
(b) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with may suspend the effectiveness of any registration, filing or qualification of the Shares with respect to the registrations such registration effected pursuant to this Section for each Holder, including (without limitation) all registration, filing3.2 in the event, and qualification feesfor such period of time as, printers such a suspension is required by the rules and accounting fees relating or apportionable thereto regulations of the SEC and may suspend use of the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include prospectus included in the piggy-back offering Shares that have not yet been purchased by a Holder so long as Registration Statement if such Holder submits an undertaking prospectus ceases to meet the Company that such Holder intends to exercise requirements of Section 10 of the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offeringAct. The Company shall will immediately advise the security holders participating in such registration of any such suspension, and will use its reasonable best efforts to register or qualify cause such suspension to terminate at the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, earliest possible date. The Subscriber agrees that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement following receipt of any such lossnotice, claimand until such suspension is terminated, damage, liability, or action if such settlement is effected without the consent Subscriber will not make use of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any suspended prospectus and will make no sales requiring delivery of such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawprospectus.
Appears in 2 contracts
Samples: Subscription Agreement (Cavion Technologies Inc), Subscription Agreement (Cavion Technologies Inc)
Registration Rights. (a) The Company shall agrees that it will prepare and file with the Securities and Exchange Commission (the "SEC"), within thirty (30) days after the date hereof, a registration statement on Form S-3 or if the Company is not eligible to use such Form S-3, another appropriate form of registration statement (the "Registration Statement"), at the sole expense of the Company (except as provided in Section 3(c) hereof), in respect of Holder's Registrable Securities, so as to permit resale of the Registrable Securities under the Securities Act. The Company agrees that it will cause the Registration Statement to become effective by April 15, 2000. The number of securities to be registered shall include all of Holder's Registrable Securities.
(b) The Company will maintain the Registration Statement or post-effective amendment filed under this Section 3 hereof current under Act covering until the resale earlier of (i) the date that all Shares of the Holder as soon as practicable following Registrable Securities have been sold pursuant to the Holder’s written request to do soRegistration Statement, (ii) the date that the Registrable Securities may be sold under the provisions of Rule 144 or (iii) three (3) years after the effective date of the Registration Statement (the "Effective Date").
(c) All fees, disbursements and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected out-of-pocket expenses and costs incurred by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, the preparation and filing or qualification of the Shares Registration Statement under Section 3(a) and in complying with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, applicable securities and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act Blue Sky laws (including, without limitation, all attorneys' fees) shall be borne by the Company. The Holder shall bear the costs of underwriting discounts and commissions, if any, applicable to the Registrable Securities being registered on its behalf and all of the other fees and expenses of such registration, including of its counsel and such other expenses as are necessary to qualify the sale of Registrable Securities in compliance with any state Blue Sky laws. The Company shall use its best efforts to qualify any of the securities for sale in such states as the Holder reasonably designates and shall furnish indemnification in the manner provided in Section 9 hereof. However, the Company shall not be required to qualify the Registrable Securities in any state or jurisdiction which will require an escrow or other restriction relating to an initial public the Company and/or the sellers, or where the Company would be required to qualify as a dealer in securities under the securities or blue sky laws of such state or jurisdiction. The Company at its expense will supply the Holder with copies of such Registration Statement and the prospectus or offering circular included therein and other related documents in such quantities as may be reasonably requested by the Holder.
(d) The Company shall not be required by this Section 3 to include Holder's Registrable Securities in the Registration Statement which is to be filed if, in the opinion of counsel for both the Holder and the Company Common Stock (or, should they not agree, in the opinion of another counsel experienced in securities law matters acceptable to counsel for the Holder and the Company), the proposed offering or other transfer as to which such registration is requested is exempt from applicable federal and state securities laws and would result in all purchasers or transferees obtaining securities which are not restricted securities, as defined in Rule 144 under the Act.
(e) No provision contained herein shall receive a request for registration on Form S-3 preclude the Company from any stockholder) with respect selling securities pursuant to any class of security registration statement in which becomes or which it is required to include Registrable Securities pursuant to this Section 3.
(f) In the event the Registration Statement to be filed by the Company believes will become effective on or pursuant to Section 3(a) above is not filed by the Company by the thirtieth (30th) day after the Initial Exercise Date and on Closing Date, or before if the Expiration DateRegistration Statement is not declared effective by the SEC by the April 15, 2000 (the "EFFECTIVE DATE"), then the Company will pay, in cash, to the Holders on a pro-rata basis by wire transfer, as liquidated damages for such failure and not as a penalty, two (2%) percent of the then value of the Registrable Securities then outstanding each month thereafter until the Registration Statement has been filed and/or declared effective. The liquidated damages shall in each case give prompt be payable within five (5) calendar days of written notice of such proposed filing demand by the Holder(s). If the Company does not remit the damages to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permitset forth above, the Holders from whom such written requests have been received to include such number of Shares (Company will pay the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable reasonable costs of collection, including attorneys fees, in addition to securities the liquidated damages. Such payment shall be made to the Holders in cash immediately if the registration of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person Registrable Securities are included thereinnot effected; provided, however, that the Company payment of such liquidated damages shall not be required relieve the Company from its obligations to honor any such request that is received more than sixty (60) days after register the proper giving Registrable Securities pursuant to this Section. The registration of the Company’s notice Securities pursuant to this provision shall not affect or limit Holder's other rights or remedies as set forth in this Agreement.
(g) The Company agrees that within three Business Days after being notified by the Expiration DateSEC that the Registration Statement(s) has been cleared to go effective, the Company it will declare such Registration Statement effective. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder The Company also agrees that it shall respond in writing to any questions and/or comments from the SEC that marketing factors require a limitation relate to the Registration Statement(s) within ten business days of receipt of such question or comment.
(h) In the event the number of shares of Common Stock included in the Registration Statement shall be insufficient to be underwritten, cover the number of Shares held by Registrable Securities due to the Holder to be included under the terms of the Purchase Agreement and/or the Notes, the Company agrees that it shall file either a new Registration Statement including such additional shares or amend the then existing Registration Statement. The Company agrees that in such underwriting event it will file with the SEC either an amendment to the then existing Registration Statement or a new Registration Statement within 30 days of when required hereunder, and use its best efforts to cause either the amendment or such Registration Statement to become effective within 90 calendar days from when required. If such amendment or new Registration Statement is not filed and/or declared effective in a timely manner as set forth herein, the Company shall not be reduced unless all other securities, other than securities subject to be registered liquidated damages as pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account provisions of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them3(f).
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.
Appears in 1 contract
Samples: Subscription Agreement (Spatializer Audio Laboratories Inc)
Registration Rights. (a) At any time commencing after the date hereof a Holder of the Conversion Shares (whether or not the Debentures have been converted) shall have the right, exercisable by written notice to the Company (the "Demand Registration Request"), to have the Company prepare and file with the Securities and Exchange Commission ("SEC"), on one occasion, at the sole expense of the Company (except as provided in Section 3(c) hereof), in respect of all holders of Registrable Securities, so as to permit a non-underwritten public offering and sale of the Registrable Securities under the Act. The number of Conversion Shares to be registered shall be one hundred fifty (150%) percent of the number of such shares that would be required, if all of the Debentures were converted on the effective date of the Registration Statement.
(b) The Company shall file a registration statement will maintain any Registration Statement or post-effective amendment filed under this Section 3 hereof current under the Securities Act covering until the resale earlier of (i) the date that all Shares of the Holder as soon as practicable following Registrable Securities have been sold pursuant to the Holder’s written request to do soRegistration Statement, (ii) the date the holders thereof receive an opinion of counsel that the Registrable Securities may be sold under the provisions of Rule 144 or (iii) the second anniversary of the effective date of the Registration Statement.
(c) All fees, disbursements and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected out-of-pocket expenses and costs incurred by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with the preparation and filing of any registration, filing or qualification of the Shares Registration Statement under subparagraph 3(a) and in complying with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, applicable securities and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act Blue Sky laws (including, without limitation, relating all attorneys' fees) shall be borne by the Company. The Holder shall bear the cost of underwriting discounts and commissions, if any, applicable to an initial public offering the Registrable Securities being registered and the fees and expenses of its counsel. The Company Common Stock or shall receive a request use its best efforts to qualify any of the securities for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which sale in such states as such Holder reasonably designates and shall furnish indemnification in the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Datemanner provided in Section 6 hereof. However, then the Company shall not be required to qualify in each case give prompt written notice any state which will require an escrow or other restriction relating to the Company and/or the sellers. The Company at its expense will supply the Holder with copies of such proposed filing Registration Statement and the prospectus or offering circular included therein and other related documents in such quantities as may be reasonably requested by the Holder.
(d) The Company shall not be required by this Section 3 to include a Holder's Registrable Securities in any Registration Statement which is to be filed if, in the opinion of counsel for both the Holder and the Company (or, should they not agree, in the opinion of another counsel experienced in securities law matters acceptable to counsel for the Holder and any subsequent Holders of this Warrant and/or Sharesthe Company) at least the proposed offering or other transfer as to which such registration is requested is exempt from applicable federal and state securities laws and would result in all purchasers or transferees obtaining securities which are not "restricted securities", as defined in Rule 144 under the Securities Act.
(e) In the event the Registration Statement to be filed by the Company pursuant to Section 3(a) above is not declared effective by the SEC within sixty (60) days before of the proposed filing date andreceipt by the Company of the Demand Registration Request, by because of the Company's acts solely and not due to Securities and Exchange Commission delay in response, then the Company will pay Holder, as liquidated damages for such noticefailure and not as a penalty, shall offer two (2%) percent of the principal amount of this Debenture for the first month and two (2%) percent of the principal amount of the Debenture for each month thereafter until the Company procures registration of the Common Stock underlying the Debenture (the "Conversion Shares"). If the Company does not remit the damages to such Holders the opportunity to include in such registration statement such number of Shares Purchaser as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permitset forth above, the Holders from whom such written requests have been received to include such number Company will pay the Purchaser reasonable costs of Shares (the “Piggy-back Shares”) collection, including attorneys fees, in the proposed offering on terms and conditions no less favorable addition to the Holders as liquidated damages. Such payment shall be made to the terms and conditions applicable to securities Purchaser immediately if the registration of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Conversion Shares if the securities of any such person are included thereinnot effected; provided, however, that the Company payment of such liquidated damages shall not be required relieve the Company from its obligations to honor any such request that is received more than sixty (60) days after register the proper giving Conversion Shares pursuant to this Section. The registration of the Company’s notice or after the Expiration Date. Notwithstanding any other Conversion Shares pursuant to this provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all affect or limit Purchaser's other securities, other than securities to be registered pursuant to the registration rights granted or remedies as set forth in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offeringthis Agreement. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations Any payment pursuant to this Section for each Holder, including (without limitation3(e) all registration, filing, and qualification fees, printers and accounting fees relating shall be made either in cash or apportionable thereto and paid in additional shares of Common Stock in an amount equal to the fees and disbursements total amount of one counsel the payment due hereunder divided by the average closing bid price of the Common Stock as reported by Nasdaq for the selling Holders selected by themthree (3) business days ending on the 120th day after the Company's receipt of the Demand Registration Agreement.
(iiif) The No provision contained herein shall preclude the Company shall be obligated from selling securities pursuant to any Registration Statement in which it is required to include Registrable Securities pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate3.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.
Appears in 1 contract
Samples: Registration Rights Agreement (Criticare Systems Inc /De/)
Registration Rights. (a) The Company shall hereby agrees to use its best efforts to file with the Securities and Exchange Commission (the "Commission") within thirty days after the date of this Agreement a registration statement (a "Registration Statement") for the benefit of the holders of the Securities. The Company further agrees that it will use its best efforts to cause such Registration Statement to be declared effective under the Securities Act covering the resale of all Shares of the Holder as soon as reasonably practicable following the Holder’s written request to do so, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for after such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwritingfiling. The Company shall bear and pay all expenses incurred in connection with any registration, filing further use its best efforts to qualify or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under register the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which under such blue sky and other state securities laws as the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice holders of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, Securities shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included thereinreasonably request; provided, however, that the Company shall not be obligated to effect any such qualification or registration in any state in which, as a condition thereto, the Company would be required to honor qualify as a foreign corporation to conduct business in such state or to file a general consent to the service or process.
(b) If any such request holder of Securities desires to sell its or his Securities included in the Registration Statement through an underwriter, it may do so provided that the underwriter is received more than sixty (60) days after reasonably acceptable to the proper giving Company. The Company agrees to enter into an underwriting agreement in customary form with the representative of the Company’s notice underwriter or after the Expiration Dateunderwriters selected for such underwriting. Notwithstanding any other provision The holders of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting Securities shall not be reduced unless all other securities, required to make any representations or warranties to the Company or the underwriter other than securities those relating to be registered pursuant to the registration rights granted such holders, their Securities and their intended method of distribution for use in the 2008 SPA (Registration Statement. Other than Sun America Life Insurance Company or its affiliates, transferees or nominees, neither the “Other Shares”) and securities to be offered for the account Company nor any other shareholders of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested Company shall be entitled to be included participate in such offering. The Company shall bear registration.
(c) All registration expenses (exclusive of underwriting discounts and pay all expenses commissions, if any) incurred in connection with any registration, filing qualification or qualification of the Shares with respect to the registrations compliance pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company 8 shall be obligated pursuant to this Section 19(b)(iii) to include in borne by the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offeringCompany. The Company shall use its also bear the reasonable best efforts to register or qualify fees and expenses of one special counsel of the Shares for offer or sale under the state securities or Blue Sky laws holders of Securities in connection with such states which the Holders of such Shares shall designatematters.
(ivd) If the Company decides not to proceed with the piggy-back offering, the The Company will have no obligation to proceed with notify each participating holder in writing upon the offering effectiveness of the Piggy-back Sharesregistration statement and will, at its expense (i) keep such registration effective until the holders have completed the distribution described in the registration statement relating thereto or until Securities may be sold without restriction or limitation in compliance with federal securities laws, whichever first occurs; and (ii) furnish such number of prospectuses and other documents incident thereto as a holder from time to time may reasonably request.
(ie) To the fullest extent permitted by law, The rights to cause the Company will to register Securities pursuant to this Agreement may be exercised by any person who purchases Securities from the Initial Purchaser (a "Purchaser") or any permitted assignee of the Purchaser; provided that the Company is, within a reasonable time after such transfer or assignment, furnished with written notice of the name 11 12 and address of such permitted transferee or assignee and the Securities with respect to which such Securities are being assigned. The Company shall, at its expense, update the registration periodically (no more often than quarterly) to substitute transferees as appropriate.
(f) The Company agrees to indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders holder of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined Securities included in the Securities Act) for such Holder Registration Statement and each person, if any, who controls such Holder or underwriter holder within the meaning of Section 15 of the Act or Section 20 of the Securities Exchange Act or of 1934 (the "Exchange Act"), against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, damages or liabilities (joint or several) to which a party hereto such holder or such controlling person (collectively "Indemnified Parties") may become subject under the Securities Act, the Exchange Act or other federal or state lawotherwise, insofar as such losses, claims, damages, damages or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: violations (collectively a "Violation"): (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statementRegistration Statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, ; (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, ; or (iii) any violation or alleged violation by any other party hereto, the Company of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law; and the Company will reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by such Indemnified Parties in connection with investigating or defending against any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, including any preliminary prospectus or final prospectus contained therein or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by any Indemnified Party specifically for use therein. This indemnity agreement will be in addition to any liability that the Company may otherwise have. The Company shall not, without the consent of the Indemnified Parties who have notified the Company of a potential claim of indemnification hereunder, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification is available hereunder (whether or not any Indemnified Parties are a party to such claim, action, suit or proceeding), unless such settlement, compromise or consent includes an unconditional release of the Indemnified Parties from all liability arising out of such claim, action, suit or proceeding.
(g) Each holder of Securities included in the Registration Statement shall agree to indemnify and hold harmless the Company, each of its directors, each of its officers, and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act against any losses, claims, damages or liabilities to which the Company or any such director, officer of the Company, or controlling person of the Company may become subject under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any Violation, in each case to the extent, and only to the extent, such violation was made in reliance upon and in conformity with written information furnished to the Company by such holder specifically for use therein; and, subject to the limitation set forth immediately preceding this clause, will reimburse, as incurred, any legal or other expenses reasonably incurred by the Company or any
Appears in 1 contract
Registration Rights. (a) The Company THE ESTATE shall file a have demand piggy-back registration statement under the Securities Act covering the resale of all Shares of the Holder as soon as practicable following the Holder’s written request to do so, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares rights with respect to the registrations pursuant Registrable Securities, subject to this Section for each Holderthe conditions set forth below. If, including at any time, the Company participates (without limitationwhether voluntarily or by reason of an obligation to a third party) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event registration of any shares of the Company proposes to file a registration statement under Company's stock within two (2) years from the Securities Act (includingdate hereof, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing thereof to the Holder Estate and the Estate shall have the right, exercisable within ten (and any subsequent Holders 10) business days after receipt of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders demand inclusion of all or a portion of the opportunity to include Estate's Registrable Securities in such registration statement statement. If the Estate exercises such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permitelection, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) Registrable Securities so designated shall be included in the proposed offering on terms and conditions registration statement at no less favorable cost or expense to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of Estate. In connection with any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; providedoffering under this Section 2 involving an underwriting, however, that the Company shall not be required to honor include any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included Registrable Securities in such underwriting shall not be reduced unless all other securitiesthe Estate accepts the terms of the underwriting as agreed upon between the Company and the underwriters selected by it. If, other than securities to be registered pursuant to in the written opinion of the managing underwriter, the registration rights granted in of all, or part of, the 2008 SPA (Registrable Securities that the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares Estate has requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification registration exceed the number of shares that can be sold without adversely affecting the marketability of the Shares with respect to offering, then the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) required to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least underwriting only the number of Shares Registrable Securities that the managing underwriter believes may, when added to the number of shares of Common Stock that other holders entitled to include shares of Common Stock in such registration have requested to be included therein, be sold without causing such adverse effect. If the number of Registrable Securities to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed underwriting in accordance with the piggy-back offering, foregoing is less than the Company will have no obligation to proceed with the offering total number of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, shares that the indemnity agreement contained in this Section 19(c)(i) shall not apply Estate has requested to amounts paid in settlement be included, then the Estate and other holders of any such loss, claim, damage, liability, or action if such settlement is effected without the consent shares of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action Common Stock entitled to the extent that it arises out include shares of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained Common Stock in such registration statement, including shall participate in the underwriting pro rata based upon their total ownership of shares of Common Stock of the Company. If any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission holder would thus be entitled to state therein a material fact required include more shares than such holder requested to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Actregistered, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawexcess shall be allocated among other requesting holders pro rata based upon their total ownership of registrable shares.
Appears in 1 contract
Registration Rights. (a) The At any time commencing after the date hereof the holders of a majority of the Conversion Shares (whether or not the Preferred Shares have been converted) shall have the right, exercisable by written notice to the Company shall (the "Demand Registration Request"), to have the Company prepare and file with the Securities and Exchange Commission ("SEC" or "Commission"), on one occasion, at the sole expense of the Company (except as provided in Section 3(c)hereof), a registration statement with respect to the Registrable Securities, so as to permit a public offering and sale by the holders thereof of the Registrable Securities under the Securities Act.
(b) The Company will maintain any Registration Statement or post-effective amendment filed under this Section 3 hereof current under the Securities Act covering until the resale earlier of (i) the date that all Shares of the Holder as soon as practicable following Registrable Securities have been sold pursuant to the Holder’s written request to do soRegistration Statement, (ii) the date the holders thereof receive an opinion of counsel that the Registrable Securities may be sold under the provisions of Rule 144 or (iii) the second anniversary of the effective date of the Registration Statement.
(c) All fees, disbursements and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected out-of-pocket expenses and costs incurred by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with the preparation and filing of any registration, filing or qualification of the Shares Registration Statement under subparagraph 3(a) and in complying with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, applicable securities and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act Blue Sky laws (including, without limitation, relating to an initial public offering all attorneys' fees) shall be borne by the Company. The Holder shall bear the cost of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date underwriting discounts and on or before the Expiration Datecommissions, then the Company shall in each case give prompt written notice of such proposed filing if any, applicable to the Holder (Registrable Securities being registered and any subsequent Holders the fees and expenses of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) its counsel. The Company shall permit, or use its best efforts to qualify any of the securities for sale in such states as such Holder reasonably designates and shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) furnish indemnification in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; providedmanner provided in Section 6 hereof. However, however, that the Company shall not be required to honor qualify in any such request that is received more than sixty (60) days after the proper giving of the Company’s notice state which will require an escrow or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant restriction relating to the registration rights granted in Company and/or the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offeringsellers. The Company shall bear and pay all expenses incurred in connection at its expense will supply the Holder with any registration, filing or qualification copies of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto such Registration Statement and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.or
Appears in 1 contract
Samples: Registration Rights Agreement (Nu Tech Bio Med Inc)
Registration Rights. 18.1 Borrower agrees, at its expense, upon written request from the Lenders, to use commercially reasonable efforts to register under the Act, the Shares and BioTime Exchange Shares and to take such other actions as may be necessary to allow the Shares and BioTime Exchange Shares to be freely tradable, without restrictions, in compliance with all regulatory requirements. A written request for registration shall specify the quantity of the Shares and BioTime Exchange Shares intended to be sold, the plan of distribution and the identity of the sellers, which may include the Lender and assignees of its rights hereunder (a) The Company collectively, “Selling Securities Holders”), and whether the registration shall be pursuant to an underwritten public offering or a “shelf’ registration pursuant to Rule 415 (or similar rule that may be adopted by the Securities and Exchange Commission). Borrower shall not be obligated to file more than two such registration statements, other than registration statements on Form S-3. Borrower shall use commercially reasonable efforts keep such registration statements effective for a period of at least nine months, except that registration statements on Form S-3 shall be kept effective for at least three years (or such lesser period as the parties may agree, but in no event beyond the completion of the distribution or distributions being made pursuant thereto). Borrower shall utilize Form S-3 if it qualifies for such use. Borrower shall make all filings required with respect to the registration statements and will use commercially reasonable efforts to cause such filings to become effective, so that the Shares and BioTime Exchange Shares being registered shall be registered or qualified for sale under the securities or blue sky laws of such jurisdictions as shall be reasonably appropriate for distribution of the Shares and BioTime Exchange Shares covered by the registration statement. Borrower will furnish to the Selling Securities Holders such numbers of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Act and such other related documents as the Selling Securities Holders may reasonably request in order to effect the sale of the Shares and BioTime Exchange Shares. To effect any offering pursuant to a registration statement under the Securities Act covering the resale of all Shares of the Holder as soon as practicable following the Holder’s written request to do sothis Section, Borrower shall enter into an agreement containing customary representations and warranties, and use its reasonable best efforts to have indemnification and contribution provisions, all for the registration statement declared effective by benefit of Selling Securities Holders, and, in the SEC for distribution thereof by means case of an underwritingunderwritten public offering. The underwriter will be an underwriting agreement with an investment banking firm selected by the Company Lender and shall be reasonably acceptable to Borrower, containing such customary representations and warranties, and indemnification and contribution provisions Borrower shall have no obligation to make any cash settlement or payment to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter Lenders or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number holder of Shares and BioTime Exchange Shares, or to be underwritten, the number of issue any additional Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or BioTime Exchange Shares) that, in the event that Borrower is unable to effect or maintain in effect the Company registration of the Shares or BioTime Exchange Shares under the Act or any state securities law despite Borrower’s commercially reasonable efforts so to do.
18.2 If, at any time, Borrower proposes to file a registration statement register any of its securities under the Securities Act (including, without limitation, relating otherwise than pursuant to an initial public offering of Company Common Stock Section 18.1 above or shall receive on a request Form S-8 if such form cannot be used for registration on Form S-3 from any stockholder) with respect of the Shares and BioTime Exchange Shares pursuant to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Dateits terms), then the Company shall in each case Borrower shall, as promptly as practicable, give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, Lender. Borrower shall offer to such Holders the opportunity to include in such registration statement such number of the Shares as they may request in writing.
(ii) The Company shall permitand BioTime Exchange Shares proposed to be sold by the Selling Securities Holders. Notwithstanding the foregoing, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the offering of Borrower’s securities of any such person are included therein; providedis to be made through underwriters, however, that the Company Borrower shall not be required to honor any such request that is received more than sixty (60) days after include the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other BioTime Exchange Shares requested to be included in such offering. The Company shall bear if and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out the managing underwriter reasonably believes in good faith that such inclusion would materially adversely affect such offering unless the Selling Securities Holders agree to postpone their sales until 10 days after the distribution is completed.
18.3 Borrower shall pay the cost of the registration statements filed pursuant to this Agreement, including without limitation all registration and filing fees, fees and expenses of compliance with securities or is based upon a Violation which occurs in reliance upon blue sky laws (including counsel’s fees and in conformity with written information furnished expressly for use expenses in connection with such registration therewith), printing expenses, messenger and delivery expenses, internal expenses of Borrower, listing fees and expenses, and fees and expenses of Borrower’s counsel, independent accountants and other persons retained or employed by Borrower. Selling Securities Holders shall pay any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) underwriters discounts applicable to which a party hereto may become subject under the Securities Act, the Shares and BioTime Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawShares.
Appears in 1 contract
Registration Rights. (a) The Company shall file a registration statement under the Securities Act covering the resale of all Shares Each of the Holder as soon as practicable following Stockholders shall be entitled to the Holder’s written request to do sobenefits of, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to bound by the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwrittenobligations of, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) Registration Rights Agreement with respect to any class of security which becomes or which Registrable Securities held by such Stockholder as if the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing Stockholder were a party to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included thereinRegistration Rights Agreement; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement request for a Required Registration (as such term is defined in the Registration Rights Agreement) pursuant to Section 2.1(a) of the Registration Rights Agreement made on or alleged untrue statement prior to the third anniversary of a material fact contained in such registration statement, including any preliminary prospectus the date of this Agreement shall only be made by or final prospectus contained therein or any amendments or supplements theretowith the consent of both of the Lead Stockholders, (ii) any request for a Required Registration pursuant to Section 2.1(a) of the omission Registration Rights Agreement made during the period following the third anniversary of the date of this Agreement through the fifth anniversary of the date of this Agreement shall only be made by the Apollo Stockholder, the Lee Xxxckholder or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or Beacon Stockholder and (iii) any violation or alleged violation by any other party hereto, request for a Shelf (as such term is defined in the Registration Rights Agreement) pursuant to Section 2.1(a) of the Registration Rights Agreement made on or prior to the fifth anniversary of the date of this Agreement shall only be made by or with the consent of both of the Lead Stockholders. Notwithstanding the foregoing, each of the Stockholders shall be entitled to exercise its rights to include its Registrable Securities Actin a registration effected by the Company pursuant to Section 2.1(b) of the Registration Rights Agreement if such registration is a Required Registration made in accordance with the immediately preceding sentence or if either Lead Stockholder is including Registrable Securities in such registration. Each of the Lead Stockholders agrees for the benefit of the other Lead Stockholder that it will not, without the Exchange Actapproval of the other Lead Stockholder, any state securities law include its Registrable Securities in a registration effected by the Company pursuant to Section 2.1(b) of the Registration Rights Agreement during the three year period following the date of this Agreement.
(b) Notwithstanding anything else in this Agreement or any rule in the Registration Rights Agreement to the contrary, in the event that the Permitted Beacon Voting Trust Transfer occurs, none of the shares of Preferred Stock or regulation promulgated under Common Stock that are received by the Securities Actbeneficiaries of the Beacon Voting Trust in connection therewith or are issued or issuable upon conversion of such shares or shares received upon such conversion shall be Registrable Securities, other than those shares that are held by the Exchange Act Beacon Stockholder or any state securities lawby a Beacon Affiliate and remain subject to the transfer, conversion and other restrictions of this Agreement. The Beacon Stockholder, in its capacities as the trustee and initial beneficiary of the First Beacon Voting Trust and the Second Beacon Voting Trust, hereby consents and agrees to be bound by the provisions of this Section 5.1(b) on behalf of itself and all future beneficiaries of the Beacon Voting Trust and acknowledges and agrees that it has the sole responsibility to notify all such beneficiaries or transferees of Shares owned by the Beacon Voting Trust of the terms of this Section 5.1(b) and the fact that they are bound thereby.
Appears in 1 contract
Registration Rights. (a) The Company shall file with the Securities and Exchange Commission a registration statement on Form S-3 relating to the Warrant and the shares of Common Stock into which the Warrant may be exercised as promptly as practicable, but in no event later than October 7, 2005. The Holder shall have the registration rights with respect to the Common Stock as set forth in that certain Registration Rights Agreement, dated as of January 18, 2002 (the "REGISTRATION RIGHTS AGREEMENT"), between America West Holdings Corporation and the Air Transportation Stabilization Board, and the term Registrable Securities defined therein shall mean this Warrant and the shares of Common Stock issued or issuable upon exercise of this Warrant (including any shares of Common Stock issued or issuable thereon upon any stock split, stock combination, stock dividend or the like or as a result of any anti-dilutions adjustment under the Warrant), upon original issuance thereof and at all times subsequent thereto, and associated related rights, if any, until the earliest of (i) the date on which the resale thereof has been effectively registered under the Securities Act covering the resale and such securities have been disposed of all Shares of the Holder as soon as practicable following the Holder’s written request to do so, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together in accordance with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees Registration Statement relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission date on which the securities have been distributed to state therein a material fact required the public pursuant to be stated therein, or necessary to make the statements therein not misleading, Rule 144 or (iii) any violation or alleged violation by any other party heretothe date on which the securities cease to be outstanding; provided, that the rights under Section 2(b) of the Securities ActRegistration Rights Agreement shall not be applicable to the Public Offering or to any registration statement filed in connection with the Private Placement. To the extent that this Warrant becomes exercisable for Exercise Shares other than the Common Stock, the Exchange ActCompany agrees to grant the Holder hereof the same registration rights with respect to such Exercise Shares as are currently granted to Holder in respect of the Registrable Securities pursuant to the Registration Rights Agreement. The Company shall provide the Holder with the same registration rights with respect to the issuance of the Exercise Shares upon exercise of the Warrant by Holders other than the initial Holder, any state securities law or any rule or regulation promulgated under as are currently granted to Holder pursuant to the Securities ActRegistration Rights Agreement. In addition, the Exchange Act Company shall use its best efforts, upon the reasonable request of the Holder, to cause the Warrant to be listed or any state quoted on a national securities lawexchange, the National Market System or the SmallCap Market.
Appears in 1 contract
Samples: Warrant Agreement (Us Airways Inc)
Registration Rights. (a) The Company shall, within three months after written demand of either Buyer, which shall be given not earlier than six months after the effective date of the registration statement relating to the Company’s proposed public offering, file with the SEC a registration statement under the 1933 Act (the “Registration Statement”) covering the maximum number of Registrable Securities Act covering (in any event equal to at least the Reserved Amount (as defined in the Notes)) as shall be permitted to be included thereon in accordance with applicable SEC rules, regulations and interpretations so as to permit the resale of all Shares such Registrable Securities by the Buyers, including but not limited to under Rule 415 under the 1933 Act at then prevailing market prices (and not fixed prices), subject to the aggregate number of authorized shares of the Holder as soon as practicable following the HolderCompany’s written request to do so, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request then available for registration on Form S-3 from any stockholder) with respect to any class issuance in its Certificate of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included thereinIncorporation; provided, however, that in the event that the Company’s pending registration statement shall not have been declared effective within three (3) months from the date of this Agreement, such demand may be given at any time after the expiration of such three (3) month period. Each Buyer and its counsel shall have a reasonable opportunity to review and comment upon such Registration Statement and any amendment or supplement to such Registration Statement and any related prospectus prior to its filing with the SEC, and the Company shall not be required give due consideration to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Dateall reasonable comments. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held Each Buyer shall furnish all information reasonably requested by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered Company for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offeringinclusion therein. The Company shall bear have the Registration Statement and pay all expenses incurred any amendment declared effective by the SEC at the earliest possible date (in connection with any registrationevent within 120 days from filing), filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) such 120-day period shall not apply be extended by up to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action 60 days to the extent that it arises out the SEC raises questions concerning the structure of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned personthe Notes. The term “Violation” means lossesCompany shall keep the Registration Statement effective, claims, damages, or liabilities including but not limited to pursuant to Rule 415 promulgated under the 1933 Act and available for the resale by the Buyers of all of the Registrable Securities covered thereby at all times until the earlier of (joint or severali) the date as of which the Buyers may sell all of the Registrable Securities without restriction pursuant to which a party hereto may become subject Rule 144 promulgated under the Securities Act, and (ii) the Exchange Act date on which the Buyers shall have sold all the Registrable Securities covered thereby (the "Registration Period"). The Registration Statement (including any amendments or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereofsupplements thereto and prospectuses contained therein) arise out of or are based upon shall not contain any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission omit to state therein a material fact required to be stated therein, or necessary to make the statements therein therein, in light of the circumstances in which they were made, not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.
Appears in 1 contract
Registration Rights. (a) The Company shall file Subject to the provisions of Paragraph 2(b), below, at any time prior to September 30, 2000 Holder may make a written demand on the Corporation for registration statement (a "Demand Registration") under the Securities Act covering of 1933, as amended (the resale "Act") of all Shares or a part of the Holder as soon as practicable following shares purchased or purchasable upon the Holder’s written request to do so, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders exercise of this Warrant and/or (the "Registrable Shares) that"). Holder shall be entitled to one Demand Registration only. Upon receipt of a Demand Registration, in the event Corporation shall take such steps as may be reasonably necessary to register such securities under the Company proposes to file Act as promptly as possible, including the preparation and filing of a registration statement under ("Registration Statement") with the Securities Act (includingExchange Commission and all necessary amendments thereto, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall take effect not be required to honor any such request that is received more later than sixty (60) days after following the proper giving date of the Company’s notice or after the Expiration DateHolder's demand. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwrittenIn addition, the number of Shares held by the Holder to Corporation shall take such actions as may be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts necessary to register or qualify the Registerable Shares for offer sale in such states and jurisdictions as Holder may direct on or prior to the effective date of such Registration Statement under any local securities or "blue sky" laws. All costs or expenses incident to the registration, qualification or listing of such securities shall be paid by the Corporation, and the Corporation shall comply with all reasonable requests of Holder made in connection with the registration, qualification, listing or sale under of Registrable Shares. Without the state securities or Blue Sky laws prior written consent of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partnersCorporation shall not effect any public sale or distribution of its debt or equity securities during the ten (10)-day period prior to, membersor during the ninety (90)-day period beginning on, officers, directors and stockholders the effective date of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in Registration Statement covering any Registrable Shares which are the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning subject of the Securities Act or Demand Registration. 103 (b) Notwithstanding the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Actforegoing, the Exchange Act or other federal or state law, insofar as Corporation shall be entitled to defer the filing of a Registration Statement required by Demand Registration for a period not to exceed sixty (60) days after receipt of such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violationsdemand if: (i) any untrue statement or alleged untrue statement the Corporation is contemplating an underwritten public offering of its securities and, in the judgment of the managing underwriter thereof, such filing of the Registration Statement for the Demand Registration would have a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, adverse effect on the Corporation's contemplated offering; (ii) the omission or alleged omission Corporation is in possession of material information that it deems advisable not to state therein disclose in a material fact required Registration Statement, provided that such information is revealed to be stated therein, or necessary Holder and Holder agrees with the Corporation's decision not to make the statements therein not misleading, disclose such information; or (iii) any violation or alleged violation the Corporation is prohibited (pursuant to the terms of an underwriting agreement previously approved by any other party hereto, the Holder in connection with a public offering of its securities effected within the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawpast six (6) months) from filing such Registration Statement.
Appears in 1 contract
Registration Rights. (a) The Company Subject to the provisions of subsection (h) of this subsection 7.4, each Selling Stockholder may, at any time following the second anniversary of the Closing Date, notify Purchaser that the Selling Stockholder desires that all or any specified portion of the Sagemark Shares held by him or it (collectively, the "REGISTRABLE SECURITIES") be registered under the Act (a "DEMAND"). Purchaser, at its sole expense, will prepare and file a registration statement pursuant to the Act to the end that Registrable Securities shall be permitted to be sold under the Act, as promptly as practical after any such notice from the Selling Stockholder and Purchaser shall use its best efforts to cause such registration statement to become effective; PROVIDED, HOWEVER, that the Selling Stockholder requesting such registration shall furnish Purchaser with all information required in connection therewith as Purchaser shall reasonably request in writing and bear the fees of any counsel retained by him or it in connection therewith and any transfer taxes and underwriting discounts or commissions applicable to the Registrable Securities sold by the Selling Stockholder pursuant thereto. Nothing contained herein shall require Purchaser to conduct a financial audit, other than in the ordinary course of business at the end of its fiscal year.
(b) In the event Purchaser receives a demand from a Selling Stockholder, Purchaser shall give notice to the other Selling Stockholders within ten (10) days of the receipt of such demand. Within twenty (20) days of the giving of such notice, each Selling Stockholder to whom or which such notice has been given shall advise Purchaser whether or not he or it desires to include any or all of his or its Registrable Securities in the registration statement to be filed by Purchaser. Upon timely receipt of any such notice electing to include Registrable Securities in the registration statement to be filed by Purchaser, Purchaser, at its sole cost and expense, will include such Registrable Securities in the registration statement to be filed pursuant to subparagraph (a) of subsection 7.4 above; PROVIDED, HOWEVER, that the Selling Stockholder requesting such registration shall furnish Purchaser with all information required in connection therewith as Purchaser shall reasonably request in writing and bear the fees of any counsel retained by him or it in connection therewith and any transfer taxes and underwriting discounts or commissions applicable to the Registrable Securities sold by the Selling Stockholder pursuant thereto. In the event a Selling Stockholder does not respond to notice that a demand for registration has been made, or responds negatively to any such notice, such Selling Stockholder will no longer have the rights provided by subparagraph (a) of subsection 7.4 above.
(c) Subject to the provisions of subparagraph (h) of this subsection 7.4 if, at any time following the second anniversary of the Closing Date, Purchaser proposes to register any of its securities under the Act (other than in connection with a merger, acquisition, or pursuant to a registration statement on Form S-8 or any successor form), it will give notice to the Selling Stockholders by certified mail, return receipt requested, at least twenty (20) days prior to the filing of each such registration statement of its intention to do so. If a Selling Stockholder notifies Purchaser within ten (10) business days after receipt of any such notice of the Selling Stockholder's desire to include any or all of his or its Registrable Securities in such proposed registration statement, Purchaser shall afford the Selling Stockholder the opportunity to have any or all of his or its Registrable Securities included in and registered under such registration statement, all at Purchaser's sole cost and expense, except for the fees of any counsel retained by the Selling Stockholder in connection therewith and any transfer taxes or underwriting discounts or commissions applicable to the Registrable Securities sold by the Selling Stockholder pursuant thereto.
(d) Notwithstanding anything contained in this subsection 7.4:
(i) if any of the offerings referred to in this subsection 7.4 are underwritten offerings and, if in the opinion of Purchaser's underwriter for any such offering the inclusion of all, or any portion of the Registrable Securities requested to be so registered by the Selling Stockholder, when added to the securities being registered by Purchaser (or any other Selling Stockholder), will exceed the maximum amount of Purchaser's securities which the underwriter believes can be marketed (x) at a price reasonably related to their then current market value, or (y) without otherwise materially adversely affecting the offering, then Purchaser may exclude from such offering all or any portion of the Registrable Securities requested by the Selling Stockholder to be registered;
(ii) If securities proposed to be offered for sale pursuant to any such registration statement are securities owned by other security holders of Purchaser and the total number of securities to be offered by the Selling Stockholder of the Registrable Securities and such other selling security holders is required to be reduced pursuant to a written request from the underwriter (which request shall be made only for the reasons set forth in subparagraph (d)(i) above) the aggregate number of Registrable Securities to be included by Purchaser for the Selling Stockholder in such registration statement shall equal the number of shares which bears the same ratio to the maximum number of securities that the underwriter believes may be included for all the selling security holders (including the Selling Stockholder of the Registrable Securities) as the original number of Registrable Securities proposed to be included therein by the Selling Stockholder bears to the total original number of securities proposed to be included therein by the Selling Stockholder and the other selling security holders; and
(iii) If any Registrable Securities requested by the Selling Stockholder to be included in a registration statement under this subsection 7.4 are not so included because of the operation of the provisions of this subparagraph (d), then the Selling Stockholder of the Registrable Securities shall have the right to require Purchaser, at Purchaser's sole cost and expense, to prepare and file a registration statement under the Securities Act covering such Registrable Securities.
(e) Notwithstanding the resale provisions of all Shares this subsection 7.4, Purchaser shall have the right at any time after it shall have given written notice pursuant to this subparagraph (d) (irrespective of the Holder as soon as practicable following the Holder’s whether a written request for inclusion of any such securities shall have been made by the Selling Stockholder) to do soelect not to file any such proposed registration statement, and or to withdraw the same after the filing but prior to the effective date thereof.
(f) Purchaser will use its reasonable best efforts to have the cause any such registration statement covering all or any portion of the Registrable Securities to become effective as promptly as possible and, if any stop order shall be issued by the U.S. Securities and Exchange Commission (the "COMMISSION") in connection therewith, to use its best efforts to obtain the removal of such order. The Selling Stockholders agree to cooperate in all respects with Purchaser in effectuating the foregoing.
(g) While any registration statement covering all or any portion of the Registrable Securities is effective, Purchaser will take all necessary action which may be required in qualifying or registering the Registrable Securities for offering and sale under the Blue Sky laws of such number of states as are reasonably requested by the Selling Stockholder; PROVIDED, HOWEVER, that Purchaser shall not be obligated to qualify as a foreign corporation to do business under the laws of any jurisdiction.
(h) Purchaser shall be required to maintain the effectiveness of any registration statement registering Registrable Securities under this subsection 7.4 until the earlier of (i) the public sale of all of the Registrable Securities registered thereunder, or (ii) the expiration of one year from the date such registration statement has been declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by themCommission.
(i) The Company covenants and giving of any notice by a Selling Stockholder under this subsection 7.4 shall not impose upon the Selling Stockholder any obligation to sell any Registrable Securities.
(j) Purchaser agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file that until all Sagemark Shares have been sold under a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holderor pursuant to Rule 144 under the Act, including (without limitation) it will, if economically practicable, keep current in filing all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and materials required to be filed with the fees and disbursements Commission in order to permit the Selling Stockholder of one counsel for the selling Holders selected by themsuch securities to sell under Rule 144.
(iiik) The Company Each Selling Stockholder shall provide Purchaser with such information necessary for the compliance by Purchaser with its obligations under this Section, as shall from time to time be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased reasonably requested by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designatePurchaser.
(ivl) If Notwithstanding the Company decides not provisions of this subsection 7.4 to proceed with the piggy-back offeringcontrary, the Company will have no obligation to proceed with registration right provided for in this subsection shall expire at such time as, in the offering opinion of Purchaser's counsel, all of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not Sagemark Shares may be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action sold pursuant to the extent that it arises out provisions of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or severalRule 144(k) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law.
Appears in 1 contract
Registration Rights. (a) The If at any time the Company shall propose to file a any registration statement (other than any registration on Form X-0, X-0 or any other similarly inappropriate form, or any successor forms thereto) under the Securities 1933 Act covering the resale of all Shares a public offering of the Common Stock (the “Registration Statement”), it will notify the Holder as soon as practicable following hereof at least thirty (30) days prior to each such filing (the Holder’s written request to do so, “Registration Notice”) and will use its reasonable best efforts to have include in the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable Registration Statement (to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(aextent permitted by applicable regulation), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Warrant Shares to be underwritten, the number of Shares held extent requested by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification hereof within twenty (20) days after receipt of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to (which request shall specify the Holder (and any subsequent Holders of interest in this Warrant and/or Shares) at least sixty (60) days before or the proposed filing date and, Warrant Shares intended to be sold or disposed of by such notice, shall offer to such Holders Holder and describe the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities nature of any person proposed sale or other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included thereindisposition thereof); provided, however, that if a greater number of Warrant Shares is offered for participation in the Company shall not be required to honor any such request that is received more proposed offering than sixty (60) days after in the proper giving reasonable opinion of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the managing underwriter advises the Holder in writing that marketing factors require a limitation of the number proposed offering can be accommodated without adversely affecting the proposed offering, then the amount of shares to be underwritten, the number of Warrant Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities proposed to be offered by such Holder for registration shall be reduced to a number deemed satisfactory by the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offeringmanaging underwriter. The Company shall bear and pay all expenses and fees incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registrationpreparation, filing, and qualification amendment of the Registration Statement with the SEC, except that the Holder shall pay all fees, printers disbursements and accounting fees relating expenses of any counsel or apportionable thereto expert retained by the Holder and the all underwriting discounts and commissions, filing fees and disbursements of one counsel for any transfer or other taxes relating to the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include Warrant Shares included in the piggy-back offering Shares that have not yet been purchased by a Registration Statement. The Holder so long as such Holder submits an undertaking agrees to cooperate with the Company in the preparation and filing of any Registration Statement, and in the furnishing of information concerning the Holder for inclusion therein, or in any efforts by the Company to establish that such Holder intends the proposed sale is exempt under the Act as to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offeringany proposed distribution. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If Holder understands that if the Company decides has not to proceed with received such information requested by the piggy-back offeringCompany in the Registration Notice within 20 days after Holder’s receipt thereof, the Company will shall have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon include any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained Warrant Shares in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawRegistration Statement.
Appears in 1 contract
Samples: Warrant Agreement (Iaso Pharma Inc)
Registration Rights. (a) The Company shall file a registration statement under the Securities Act covering the resale of all Shares of the Holder as soon as practicable following the Holder’s written request to do so, and use its reasonable best efforts to have the registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding At any other provision of this Section 19(a), if the underwriter advises the Holder in writing time that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by them.
(i) The Company covenants and agrees with the Holder (and any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a Company registration statement under (a "Company Registration Statement"), either for its own account or for the Securities Act (includingaccount of a shareholder or shareholders, without limitationcovering the disposition of securities of the Company, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall give the Holder written notice of its intention to do so and of the intended method of sale (the "Registration Notice") within a reasonable time prior to the anticipated filing date of the Company Registration Statement effecting such Registration. The Holder may request inclusion of any or all of the Warrant Securities in such Company Registration by delivering to the Company, within ten (10) Business Days after receipt of the Registration Notice, a written notice (the "Piggyback Notice") stating the number of Warrant Securities proposed to be included and that such shares are to be included in any underwriting only on the same terms and conditions as the shares of Common Stock otherwise being sold through underwriters or otherwise under such Company Registration Statement; provided that the Holder will not be required to make any representation other than as to title to the Warrant Securities and will not be required to give any indemnity substantially more unfavorable to the Holder than is given herein or in each case give prompt written notice of such proposed filing as may reasonably be required by the underwriter pursuant to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) applicable law. The Company shall permit, or shall use its best efforts to cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) all Warrant Securities specified in the proposed offering on terms Piggyback Notice to be included in the Company Registration Statement and conditions no less favorable any related offering, all to the Holders as extent required to permit the terms and conditions sale by the Holder of such Warrant Securities in accordance with the method of sale applicable to securities the other shares of the Common Stock included in such Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included thereinRegistration Statement; provided, however, that if, at any time after giving written notice of its intention to register any securities and prior to the effective date of the Company Registration Statement filed in connection with such registration, the Company shall determine for any reason not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws to delay registration of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offeringsecurities, the Company will have no obligation may, at its election, give written notice of such determination to proceed with the offering of the Piggy-back Shares.Holder and, thereupon:
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the case of a determination not to register, shall be relieved of its obligation to register any Warrant Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by (but not from its obligation to pay any such Holderexpenses in connection therewith), underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, and
(ii) in the omission or alleged omission case of a delay in registering, shall be permitted to state therein a material fact required to be stated therein, or necessary to make delay registering any Warrant Securities for the statements therein not misleading, or (iii) any violation or alleged violation by any same period as the delay in registering such other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawsecurities.
Appears in 1 contract
Samples: Advisor Warrant (Bio Plexus Inc)
Registration Rights. (a) The Company shall agrees that it will prepare and file with the Securities and Exchange Commission ("SEC"), on or prior to April 15, 2000, a registration statement (on Form SB-2, or other appropriate registration statement) under the Securities 1933 Act covering (the resale "Registration Statement"), at the sole expense of the Company (except as provided in Section 3(c) hereof), in respect of all Shares holders of Registrable Securities, so as to permit a public offering and sale of the Holder as soon as practicable following Registrable Securities under the Holder’s written request to do so, and Act. The Company shall use its reasonable best efforts to have cause the registration statement declared Registration Statement to become effective by the SEC for distribution thereof by means of an underwritingon or before July 1, 2000. The underwriter will number of shares of Common Stock designated in the Registration Statement to be selected by the Company and registered shall be reasonably acceptable to the Holder. The Holder shall not less than (together with the Company as provided herein belowi) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation 100% of the number of Common Shares to be underwrittenacquired under the Purchase Agreement, plus (ii) 100% of the number of Warrant Shares held by issuable assuming all of the Holder Warrants had been issued pursuant to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. Purchase Agreement and Consulting Agreement.
(b) The Company shall bear and pay will maintain the Registration Statement, or post-effective amendment filed under this Section 3 hereof current under the 1933 Act until the earlier of (i) the date that all expenses incurred in connection with any registration, filing or qualification of the Shares with respect Registrable Securities have been sold pursuant to the registrations pursuant to this Section for each Holderapplicable Registration Statement, including (ii) the date the holders thereof receive an opinion of counsel that the Registrable Securities may be sold under the provisions of Rule 144 (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and (iii) five years after the fees and disbursements of one counsel for the selling Holders as selected by themSubscription Date.
(ic) The All fees, disbursements and out-of-pocket expenses and costs incurred by the Company covenants and agrees in connection with the Holder (preparation and any subsequent Holders filing of this Warrant and/or Sharesthe Registration Statement under subparagraph 3(a) that, and in the event the Company proposes to file a registration statement under the Securities Act complying with applicable securities and blue sky laws (including, without limitation, relating all attorneys' fees) shall be borne by the Company. The Holders shall bear the cost, pro rata, of underwriting discounts and commissions, if any, applicable to an initial public the Registrable Securities being registered and the fees and expenses of its counsel. The Company shall qualify any of the securities for sale in such states as such Holder reasonably designates and shall furnish indemnification in the manner provided in Section 6 hereof. The Company at its expense will supply the Holders with copies of the Registration Statement and the prospectus or offering circular included therein and other related documents in such quantities as may be reasonably requested by the Holders.
(d) The Company shall not be required by this Section 3 to include a Holder's Registrable Securities in any Registration Statement which is to be filed if, in the opinion of Company Common Stock or shall receive a request counsel for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which both the Holder and the Company believes will become effective on (or, should they not agree, in the opinion of another counsel experienced in securities law matters acceptable to counsel for the Holder and the Company) the proposed offering or after other transfer as to which such registration is requested is exempt from applicable federal and state securities laws and would result in all purchasers or transferees obtaining securities which are not "restricted securities", as defined in Rule 144 under the Initial Exercise Date and 1933 Act.
(e) In the event the Registration Statement to be filed by the Company pursuant to Section 3(a) above is not filed with the SEC on or before May 15, 2000 and/or the Expiration DateRegistration Statement is not declared effective by the SEC on or before August 1, 2000, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, will pay the Holders from whom (pro rated on a daily basis), as liquidated damages for such written requests have failure and not as a penalty, two percent of the purchase price of the then outstanding Securities for every 30 calendar day period until the Registration Statement has been received to include such number filed and/or declared effective. Such payment of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable liquidated damages shall be made to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; in cash, immediately upon demand, provided, however, that the Company payment of such liquidated damages shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to relieve the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use from its reasonable best efforts obligations to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) Registrable Securities. If the Company decides does not remit the damages to proceed with the piggy-back offeringHolder as set forth above, the Company will have no obligation pay the Holders reasonable costs of collection, including attorneys fees, in addition to proceed with the offering liquidated damages. The registration of the Piggy-back SharesSecurities pursuant to this provision shall not affect or limit Holder's other rights or remedies as set forth in this Agreement.
(if) To The Company agrees that it shall declare the fullest extent permitted Registration Statement effective within three Business Days after being informed by law, the SEC that it may do so. The Company will indemnify and hold harmless each Holder, also agrees that it shall respond to any questions and/or comments from the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Violation (as defined herein below) and the Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 19(c)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (SEC which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action relate to the extent that it arises out Registration Statement within five Business Days of receipt of such question or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawcomment.
Appears in 1 contract
Samples: Registration Rights Agreement (Pacific Webworks Inc)
Registration Rights. (a) The Company shall On or before March 20, 2001, Telenetics shall, at its sole cost and expense, file a registration statement on the appropriate form under the Act with the Securities Act and Exchange Commission covering the resale of all Shares of the Holder as soon as practicable following the Holder’s written request to do so, and Shares. Telenetics will use its reasonable best efforts to have the such registration statement declared effective by the SEC for distribution thereof by means of an underwriting. The underwriter will be selected by the Company as soon as possible after filing, and shall be reasonably acceptable to the Holder. The Holder shall (together with the Company keep such registration statement current and effective until December 20, 2001 or until such earlier date as provided herein below) enter into an underwriting agreement in a customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 19(a), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of Shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect to the registrations registered pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders as selected by themsuch registration statement shall have been sold.
(ib) The Company covenants and agrees with the Holder (and If Telenetics effects any subsequent Holders of this Warrant and/or Shares) that, in the event the Company proposes to file a registration statement under the Securities Act (including, without limitation, relating to an initial public offering of Company Common Stock or shall receive a request for registration on Form S-3 from any stockholder) with respect to any class of security which becomes or which the Company believes will become effective on or after the Initial Exercise Date and on or before the Expiration Date, then the Company shall in each case give prompt written notice of such proposed filing to the Holder (and any subsequent Holders of this Warrant and/or Shares) at least sixty (60) days before the proposed filing date and, by such notice, shall offer to such Holders the opportunity to include in such registration statement such number of Shares as they may request in writing.
(ii) The Company shall permit, or shall cause the managing underwriter of a proposed offering to permit, the Holders from whom such written requests have been received to include such number of Shares (the “Piggy-back Shares”) in the proposed offering on terms and conditions no less favorable to the Holders as the terms and conditions applicable to securities of the Company included therein or as applicable to securities of any person other than the Company and the Holders of Piggy-back Shares if the securities of any such person are included therein; provided, however, that the Company shall not be required to honor any such request that is received more than sixty (60) days after the proper giving of the Company’s notice or after the Expiration Date. Notwithstanding any other provision of this Section 19(b)(ii), if the underwriter advises the Holder in writing that marketing factors require a limitation of the number of shares to be underwritten, the number of Shares held by the Holder to be included in such underwriting shall not be reduced unless all other securities, other than securities to be registered pursuant to the registration rights granted in the 2008 SPA (the “Other Shares”) and securities to be offered for the account of the Holders of the New Warrants and the Company, are first entirely excluded from the underwriting, and unless the number of Other Shares, on the one hand, and Piggy-back Shares on the other hand, are cut back on a pro rata basis based on the number of Piggy-back Shares and Other Shares requested to be included in such offering. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of the Shares with respect pursuant to Section 17(a) above, Telenetics shall indemnify, to the registrations pursuant to this Section for each Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of one counsel for the selling Holders selected by them.
(iii) The Company shall be obligated pursuant to this Section 19(b)(iii) to include in the piggy-back offering Shares that have not yet been purchased by a Holder so long as such Holder submits an undertaking to the Company that such Holder intends to exercise the Warrant for at least the number of Shares to be included in such piggy-back offering prior to the consummation of such piggy-back offering. The Company shall use its reasonable best efforts to register or qualify the Shares for offer or sale under the state securities or Blue Sky laws of such states which the Holders of such Shares shall designate.
(iv) If the Company decides not to proceed with the piggy-back offering, the Company will have no obligation to proceed with the offering of the Piggy-back Shares.
(i) To the fullest extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each HolderCIC, any underwriter (as defined in the Securities Act) for such Holder underwriter, any officer, director, affiliate, shareholder, employee or agent of CIC or underwriter, and each other person, if any, who controls such Holder CIC or underwriter within the meaning of Section 15 of the Securities Act or the Exchange Act, against any Violation losses, claims, damages, liabilities, judgment, fines, penalties, costs and expenses, joint or several, or actions in respect thereof (as defined herein below) and collectively, the Company will pay "Claims"), to which each such Holderindemnified party becomes subject, underwriterunder the Act or otherwise, controlling person insofar as such Claims arise out of or other aforementioned personare based upon any untrue statement or alleged untrue statement of any material fact contained in the registration statement or prospectus or any amendment or supplement thereto or any document filed under a state securities or blue sky law (collectively, the "Registration Documents") or insofar as such Claims arise out of or are based upon the omission or alleged omission to state in any Registration Document a material fact required to be stated therein or necessary to make the statements made therein not misleading, and will reimburse any such indemnified party for any legal or other expenses reasonably incurred by them such indemnified party in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurredClaim; provided, however, provided that the indemnity agreement contained in this Section 19(c)(i) Telenetics shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to a particular indemnified party to the extent that it arises out of or such Claim is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations: (i) any an untrue statement or alleged untrue statement of a material fact contained or omission or alleged omission of a material fact made in any Registration Document in reliance upon and in conformity with information furnished to Telenetics by or on behalf of such indemnified party specifically for use in the preparation of such Registration Document.
(c) In connection with any registration statement in which CIC is participating, CIC shall indemnify, to the extent permitted by law, and hold harmless Telenetics, each of its directors, each of its officers who have signed the registration statement, including each other person, if any, who controls Telenetics within the meaning of Section 15 of the Act, each other seller with securities registered pursuant to the same registration statement under which the Shares are registered, and each underwriter, any preliminary prospectus officer, director, affiliate, shareholder, employee or final prospectus agent of any such other seller or underwriter and each other person, if any, who controls such other seller or underwriter within the meaning of Section 15 of the Act, against any Claims to which each such indemnified party may become subject under the Act or otherwise, insofar as such Claims (or actions in respect thereof) are based upon any untrue statement or alleged untrue statement of any material fact contained therein in any Registration Document, or insofar as any amendments or supplements thereto, (ii) Claims are based upon the omission or alleged omission to state therein in any Registration Document a material fact required to be stated therein, therein or necessary to make the statements made therein not misleading, and will reimburse any such indemnified party for any legal or other expenses reasonably incurred by such indemnified party in investigating or defending any such Claim; provided, however, that such indemnification or reimbursement shall be payable only if, and to the extent that, any such Claim arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Registration Document in reliance upon and in conformity with information furnished to Telenetics by CIC specifically for use in the preparation thereof.
(d) Any person entitled to indemnification under Section 17(b) or 17(c) above shall notify promptly the indemnifying party in writing of the commencement of any Claim if a claim for indemnification in respect thereof is to be made against an indemnifying party under this Section 17(d), but the omission of such notice shall not relieve the indemnifying party from any liability which it may have to any indemnified party otherwise than under Section 17(b) or 17(c) above, except to the extent that such failure shall materially adversely affect any indemnifying party or its rights hereunder. In case any action is brought against the indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate in, and, to the extent that it chooses, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party; and, after notice from the indemnifying party to the indemnified party that it so chooses, the indemnifying party shall not be liable for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof; provided, however, that (i) if the indemnifying party fails to take reasonable steps necessary to defend diligently the Claim within twenty (20) days after receiving notice from the indemnified party that the indemnified party believes it has failed to do so; (ii) if the indemnified party who is a defendant in any action or proceeding which is also brought against the indemnifying party reasonably shall have concluded that there are legal defenses available to the indemnified party which are not available to the indemnifying party; or (iii) if representation of both parties by the same counsel is otherwise inappropriate under applicable standards of professional conduct, the indemnified party shall have the right to assume or continue its own defense as set forth above (but with no more than one firm of counsel for all indemnified parties, except to the extent any violation indemnified party or parties reasonably shall have concluded that there are legal defenses available to such party or parties which are not available to the other indemnified parties or to the extent representation of all indemnified parties by the same counsel is otherwise inappropriate under applicable standards of professional conduct) and the indemnifying party shall be liable for any reasonable expenses therefor; provided, that no indemnifying party shall be subject to any liability for any settlement of a Claim made without its consent (which may not be unreasonably withheld, delayed or conditioned). If the indemnifying party assumes the defense of any Claim hereunder, such indemnifying party shall not enter into any settlement without the consent of the indemnified party if such settlement attributes liability to the indemnified party.
(e) If for any reason the indemnity provided in Section 17(b) or 17(c) above is unavailable, or is insufficient to hold harmless, an indemnified party, then the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of any Claim in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party on the one hand and the indemnified party on the other from the transactions contemplated by this Agreement. If, however, the allocation provided in the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the indemnifying party and the indemnified party as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged violation untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable in respect of any Claim shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim. Notwithstanding the foregoing, no underwriter or controlling person thereof, if any, shall be required to contribute, in respect of such underwriter's participation as an underwriter in the offering, any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligation of any underwriters to contribute pursuant to this Section 17(e) shall be several in proportion to their respective underwriting commitments and not joint.
(f) The provisions of Section 17(b) through 17(e) of this Agreement shall be in addition to any other rights to indemnification or contribution which any indemnified party may have pursuant to law or contract and shall remain operative and in full force and effect regardless of any investigation made or omitted by or on behalf of any indemnified party and shall survive the transfer of the Shares by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities lawsuch party.
Appears in 1 contract
