Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”). (b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period. (c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities. (d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 3 contracts
Samples: Purchase Agreement (Covad Communications Group Inc), Registration Rights Agreement (Covad Communications Group Inc), Registration Rights Agreement (Earthlink Inc)
Registration. (a) On or prior to the Filing Date, the Company shall use its best efforts to prepare and file with the Commission a the Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement required hereunder shall be on Form S-3 (except if SB-2 and shall register the Company is not then eligible to register for resale of the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose)Shares and the Warrant Shares. The Company shall use its best efforts to cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its commercially reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no as promptly as possible after the filing thereof, but in any event not later than the Effectiveness Date, and shall use its commercially reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of the date when all Registrable Securities covered by the Registration Statement (ia) five years after have been sold, transferred or disposed of pursuant to the Effective Date, (ii) such time as all Registration Statement or an exemption from the registration requirements of the Registrable Securities have been publicly sold by the Purchaser, Act or (iiib) such time as all of the Registrable Securities may be sold by non-affiliates without volume restrictions pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent (the “"Effectiveness Period”").
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a Registration Statement is (i) not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall pay to each Holder an amount in shares, as liquidated damages and not be deemed as a penalty, equal to have satisfied this clause (i)), or 1% of the aggregate Shares purchased by such Holder pursuant to the Purchase Agreement for any Registrable Securities then held by such Holder; and if (ii) a the Registration Statement is not declared effective by the Commission on or prior to its required before the Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement is first declared effective by the Commission, it ceases for any reason to be remain continuously effective and available to the Purchaser as to all Registrable Securities to not sold, disposed of or transferred for which it is required to cover at any time prior be effective, or the Holders are not permitted to utilize the expiration Prospectus therein to resell such Registrable Securities through no fault of its Effectiveness Periodtheir own, for an aggregate of 20 in any such cases twenty Trading Days for all such events (which need not be consecutive days) in the aggregate during any 12-month period (any such failure or breach being referred to as an “"Event,” " and for purposes of clauses clause (i) and or (ii) the date on which such Event occurs, or for purposes of clause (ii) the date which such Trading Day period is exceeded, or for purposes of clause (iii) the date on which such 20 twenty Trading Day period is exceeded, being referred to as “"Event Date”"), then, for so long as such event is within then in addition to any other rights the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash Holders may have hereunder or through the issuance of Additional Notes (as defined in the Note), to the Purchaser under applicable law: on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is curedcured or no more than a total of twelve months from the Closing Date, the Company shall pay to each Holder an amount in shares, as liquidated damages and not as a penalty, equal to 2% of the aggregate Shares owned by such Holder pursuant to the Purchase Agreement for any Registrable Securities then held by such Holder no more than a total of twelve months from the Closing date. In no way will the Company pay more than 2% per month if the Company misses both the Filing Date and Effective Date. The liquidated damages pursuant to the terms hereof shall apply on a pro pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 3 contracts
Samples: Shares and Warrant Purchase Agreement (Xfone Inc), Shares and Warrant Purchase Agreement (Xfone Inc), Shares and Warrant Purchase Agreement (Xfone Inc)
Registration. (a) On Upon the written request of Xxxxxxx at any time on or prior to after the Filing six-month anniversary of the Closing Date, (the Company shall prepare and “Registration Notice”), Stratus shall, within sixty days of its receipt of such Registration Notice, file with the Commission SEC a Registration Statement on Form S-3 (or such other form as is then available to Stratus to effect a registration for resale of the Registrable Securities) covering the resale of the Registrable Securities. Any Registration Statement shall provide for the resale of Registrable Securities pursuant to any method or combination of methods legally available to, and requested by, Xxxxxxx. If such Registration Statement is not automatically effective upon filing, then Stratus shall use its commercially reasonable efforts to cause such Registration Statement to be declared effective not later than 240 days following Stratus' receipt of the Registration Notice.
(b) Stratus shall use its commercially reasonable efforts to cause a Registration Statement filed pursuant to this Section 2.1 to be effective, supplemented, amended and replaced to the extent necessary to ensure that it is available for the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act Xxxxxxx until the earliest date on which is any of the earlier of following occurs: (i) five years after the Effective Date, all Registrable Securities covered by such Registration Statement have ceased to be Registrable Securities and (ii) such time as all of the there are no longer any Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) outstanding (the “Effectiveness Period”).
. Subject to Section 2.2, upon the occurrence of any event that would cause the Registration Statement or the prospectus contained therein (bi) If to contain an untrue statement of material fact or omit to state any material fact necessary to make the statements therein not misleading or (ii) not to be effective and usable for any reason the Commission does not permit resale of all or part of the Registrable Securities by Xxxxxxx, Stratus shall promptly file an appropriate amendment to be included in the Registration Statement filed pursuant curing such defect, and, if SEC review is required, use its commercially reasonable efforts to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company cause such amendment to be declared effective as soon as practicable. Stratus shall prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts necessary to keep such Registration Statement continuously effective during the Effectiveness Period; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act, and to comply fully with the rules and regulations under the Securities Act in a timely manner; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by the Registration Statement during its entire the Effectiveness Period.
(c) If: (i) Subject to Section 2.2, a Registration Statement when effective will comply as to form in all material respects with all applicable requirements of the Securities Act and the Exchange Act and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading (and, in the case of any prospectus contained in such Registration Statement, in the light of the circumstances under which a statement is not filed on or prior to its Filing Date (if made). As soon as practicable following the Company files date that a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day periodbecomes effective, but in no any event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance within two (2) Business Days of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof , Stratus shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than provide Xxxxxxx with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy written notice of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements effectiveness of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rightsStatement.
Appears in 3 contracts
Samples: Investor Rights Agreement (Stratus Properties Inc), Investor Rights Agreement (Moffett Holdings, L.L.C.), Investor Rights Agreement (Stratus Properties Inc)
Registration. (a) On To the extent that a Registration Statement filed pursuant to Section 2(b) or prior a Shelf Registration Statement is not available to effect the Filing Dateproposed transaction, each Investor (other than each Co-Investor who shall have the right to make such a request after the expiration of the Coordination Period) may request that the Company register under the Securities Act all or any portion of its Registrable Securities pursuant to a Registration Statement on Form X-0, X-0 or any successor form thereto with respect to an underwritten public offering of Registrable Securities (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than 10 days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have 15 days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form X-0, X-0 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within 60 days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(b) The Company shall, as soon as practicable, but in any event within thirty (30) days after the Closing Date, file (or confidentially submit) a Registration Statement to permit the public resale of all the Registrable Securities not already covered held by an existing the Investors from time to time as permitted by Rule 415 under the Securities Act (or any successor or similar provision adopted by the Commission then in effect) on the terms and effective conditions specified in this Section 2(b) and shall use its commercially reasonable efforts to cause the Registration Statement for an offering to be made declared effective as soon as practicable after the filing thereof, but in no event later than the earlier of (i) the 75th day (or 135th day if the Commission notifies the Company that it will “review” the Registration Statement) following the Closing Date and (ii) the 5th business day after the date the Company is notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be “reviewed” or will not be subject to further review (such earlier date, the “Effectiveness Deadline”). The Registration Statement filed with the Commission pursuant to this Section 2(b) shall be on Form F-3 or S-3, or if Form F-3 or S-3 is not then available to the Company, on Form F-1 or S-1 or such other form of registration statement as is then available to effect a registration for the sale or resale of such Registrable Securities on a delayed or continuous basis pursuant to Rule 415415 under the Securities Act or any successor rule or provision similar thereto adopted by the Commission, covering such Registrable Securities, and shall contain a Prospectus in such form as to permit any Investor to sell such Registrable Securities pursuant to Rule 415 under the Securities Act (or any successor rule or similar provision adopted by the Commission then in effect) at any time beginning on the effective date for such Registration Statement. The A Registration Statement filed pursuant to this Section 2(b) shall be on Form S-3 (except if provide for the Company is not then eligible sale or resale pursuant to register for resale any method or combination of methods legally available to, and requested by, the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose)Investors. The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the a Registration Statement filed pursuant to Section 2(a)2(b) to remain effective, and to be supplemented and amended to the extent necessary to ensure that such Registration Statement is available or, if not available, that another Registration Statement or Shelf Registration Statement is continuously available, for any other reason any the resale of all the Registrable Securities are not included in held by the Holders until all such Registrable Securities have ceased to be Registrable Securities. As soon as practicable following the effective date of a Registration Statement filed under pursuant to this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be madeSection 2(b), but in any event by within one (1) business day of such date, the Company shall notify the Investors of the effectiveness of such Registration Statement. If, after the filing such Registration Statement, a holder of Registrable Securities requests registration under the Securities Act of additional Registrable Securities pursuant to such Registration Statement, the Company shall amend such Registration Statement to cover such additional Registrable Securities. The provisions of Section 2(d) shall apply mutatis mutandis to any resale of Registrable Securities pursuant to a registration statement filed pursuant to this Section 2(b).
(c) The Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form X-0, X-0 or any successor form thereto. As soon as practicable after the date hereof, but not later than the Target Filing Date, an additional the Company shall (i) prepare and file with (or confidentially submit to) the Commission a Registration Statement covering on Form X-0, X-0 or the resale of all Registrable Securities not already covered by an existing and effective Registration Statement then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”) that covers all Registrable Securities then outstanding for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”) and (ii) use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter. In addition, on Form S-3 the Company shall use its best efforts to cause a Shelf Registration Statement filed pursuant to Section 2(c) to remain effective, and to be supplemented and amended to the extent necessary to ensure that such Shelf Registration Statement is available or, if not available, that another Shelf Registration Statement (except if the Company is eligible to file a Shelf Registration Statement) or other Registration Statement (if the Company is not then eligible to register so eligible) is continuously available, for the resale of all the Registrable Securities held by the Holders until all such Registrable Securities have ceased to be Registrable Securities. For purposes hereof, “Target Filing Date” shall mean the date which is 30 days after the Company becomes qualified to register the offer and sale of securities under the Securities Act pursuant to a Shelf Registration Statement. If, after the filing of a Shelf Registration Statement, a holder of Registrable Securities requests registration under the Securities Act of additional Registrable Securities pursuant to such Shelf Registration, the Company shall amend such Shelf Registration Statement to cover such additional Registrable Securities. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3X-0, X-0 or any successor form thereto, the holders of Registrable Securities (other than the Co-Investors who shall have the right to make such a request after the expiration of the Coordination Period) shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form X-0, X-0 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in which case the Short-Form Registration. Upon receipt of any such registration request, the Company shall promptly (but in no event later than 10 days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have 15 days from the date such notice is given to notify the Company in writing of their desire to be on another appropriate form for included in such purpose)registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form X-0, X-0 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within 30 days after the date on which the initial request is given and shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under by the Securities Act Commission as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Periodpracticable thereafter.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 3 contracts
Samples: Registration Rights Agreement (Abu Dhabi Investment Authority), Registration Rights Agreement (Blackstone Holdings III L.P.), Registration Rights Agreement (Alight Group, Inc.)
Registration. (a) On or prior to As soon as practicable following the Filing Datedate hereof, the Company General Partner shall prepare and file with the Commission a Registration Statement on Form S-3 or other appropriate registration form (the "Registration Statement") with the SEC covering the resale by Contributing Parties of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering the Shares to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if issued upon exercise of the Company is not then eligible to register for resale Redemption Rights assuming full conversion of the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company Series B Preferred Units into Common Units and full satisfaction of the Redemption Rights by delivery of Shares and shall use its reasonable best efforts to cause the Registration Statement to be declared become effective as soon as practicable thereafter. Following the effective date of the Registration Statement and until the Shares covered by the Registration Statement have been sold or are eligible for resale under Rule 144(k) promulgated under the Securities Act, the General Partner shall keep the Registration Statement current, effective and available for the resale by Contributing Parties of the Shares delivered to them pursuant hereto. The General Partner shall bear all expenses relating to filing such Registration Statement and keeping such Registration Statement current, effective and available; provided, however, that the General Partner shall not be responsible for any brokerage fees or underwriting commissions due and payable by any Contributing Party.
(b) During the time period when the Registration Statement is required to be current, effective and available under Section 4.1(a), the General Partner also shall:
(i) prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus constituting a part thereof, as amended or supplemented (the "Prospectus"), as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the sale of the Shares covered by such Registration Statement whenever any Contributing Party shall desire to sell or otherwise dispose of the same but in no later than event beyond the Effectiveness Dateperiod in which the Registration Statement is required to be kept in effect;
(ii) furnish to each Contributing Party, without charge, such number of authorized copies of the Prospectus, and any amendments or supplements to the Prospectus, in conformity with the requirements of the Securities Act, and such other documents as any Contributing Party may reasonably request in order to facilitate the public sale or other disposition of the Shares owned by Contributing Parties.
(iii) register or qualify the securities covered by the Registration Statement under state securities or blue sky laws of such jurisdictions as are reasonably required to effect a sale thereof and do any and all other acts and things which may be necessary or appropriate under such state securities or blue sky laws to enable Contributing Parties to consummate the public sale or other disposition in such jurisdictions of such securities;
(iv) before filing any amendments or supplements to the Registration Statement or the Prospectus, furnish copies of all such documents proposed to be filed to the Contributing Party Representative who shall be afforded a reasonable opportunity to review and comment thereon; provided, however, that all such documents shall be subject to the approval of the Contributing Party Representative insofar as they relate to information concerning Contributing Parties (including, without limitation, the proposed method of distribution of any Contributing Party's securities);
(v) notify Contributing Parties promptly (A) when any such Registration Statement has become effective and when any post-effective amendments and supplements thereto become effective, (B) of any request by the SEC or any state securities authority for amendments and supplements to such Registration Statement and the Prospectus or for additional information, (C) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of any such Registration Statement or the initiation of any proceedings for the purpose, (D) if, between the effective date of any such Registration Statement and the sale of the Shares to which it relates, the General Partner receives any notification with respect to the suspension of the qualification of the Shares or initiation of any proceeding for such purpose, and (E) of the happening of any event during the period such Registration Statement is effective which in the judgment of the General Partner makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or which requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading;
(vi) use its reasonable best efforts to keep obtain the withdrawal of any order suspending the effectiveness of a Registration Statement at the earliest practicable time;
(vii) cooperate with each Contributing Party to facilitate the timely preparation and delivery of certificates representing Shares being sold, which certificates shall not bear any restrictive legends provided the Shares evidenced thereby have been sold in a manner permitted by the Prospectus; and
(viii) upon the occurrence of any event contemplated by Section 4.1(b)(v)(E) hereof, promptly prepare and file a supplement or post-effective amendment to the Registration Statement continuously effective under or the Securities Act until Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all purchasers of the Registrable Securities have been publicly sold by Shares, the Purchaser, Prospectus will not contain any untrue statement of a material fact or (iii) such time as all omit to state a material fact necessary to make the statements therein in light of the Registrable Securities may circumstances under which they were made, not misleading; provided, however, that the obligation to prepare and file any such supplement or post-effective amendment shall be sold pursuant to Rule 144(k) (suspended if the “Effectiveness Period”).
(b) If for General Partner, relying upon advice of counsel, determines that disclosure of any reason the Commission does not permit all of the Registrable Securities information required to be included in the Registration Statement filed pursuant therein would be adverse to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be madeits interests, but in such suspension shall not extend beyond 90 days with respect to any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any specified event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: The General Partner hereby agrees to indemnify and hold harmless each Contributing Party and each person, if any, who controls such Contributing Party (iwithin the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) from and against any and all losses, claims, damages, costs and expenses (including reasonable attorneys' fees) ("Claims") to which such Contributing Party or such controlling person may become subject, under the Securities Act or otherwise, caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement is or the Prospectus or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not filed on misleading, and shall reimburse such Contributing Party and each such controlling person for any legal or prior to its Filing Date (if other expenses reasonably incurred by such Contributing Party in connection with investigating or defending any such loss as such expenses are incurred; provided, however, that the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company General Partner shall not be deemed liable insofar as any such losses, claims, damages, costs and expenses (including reasonable attorneys' fees) are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information furnished in writing to have satisfied this clause the General Partner by any Contributing Party expressly for use therein. Each Contributing Party agrees to indemnify and hold harmless the General Partner and each person, if any, who controls the General Partner (i))within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) from and against any and all Claims to which the General Partner or such controlling person may become subject, under the Securities Act or otherwise, caused by any untrue statement or omission or alleged untrue statement or omission based upon such information furnished in writing to the General Partner by such Contributing Party.
(iid) a Registration Statement is not declared effective by Each Contributing Party agrees that, upon receipt of any notice from the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for General Partner of the reason thereunder or efforts therefor other than a Suspension Event happening of any event of the kind described in compliance with Section 6(c4.1(b)(v)(E), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration Contributing Party will forthwith discontinue disposition of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser securities pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence Registration Statement until such Contributing Party's receipt of the Event Date copies of the supplemented or amended Prospectus contemplated by Section 4.1(b)(viii).
(e) Upon the written request to the General Partner from time to time as below provided and shall increase subject to other contractual obligations of the General Partner, the Contributing Parties holding Shares covered by 0.50% per annum at the end Registration Statement who desire to do so may sell such Shares covered by the Registration Statement in an underwritten offering. In such underwritten offering, the investment banker or bankers and manager or managers that will administer the offering will be selected by, and the underwriting arrangements with respect thereto will be approved by, the Contributing Parties; provided that such investment bankers and managers and underwriting arrangements must be reasonably satisfactory to the General Partner. No Contributing Party may participate in any underwritten offering contemplated hereby unless such Contributing Party agrees to sell such Contributing Party's Shares covered by the Registration Statement in accordance with any approved underwriting arrangements and completes and executes all reasonable questionnaires, powers of each subsequent 90attorney, indemnities, underwriting agreements, lock-day period, but in no event shall up letters and other documents required under the terms of such rate exceed 1.00% per annumapproved underwriting arrangements. The liquidated damages General Partner shall be due responsible for the costs of preparing and payable filing the amendment or supplement that is referred to below, and the selling securityholders shall pay their attorney's fees and underwriting discounts and commissions incurred in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each connection with such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Eventunderwritten offerings. Notwithstanding the foregoing, no liquidated damages will accrue hereunder upon receipt of a request from the managing underwriter or a representative of the Contributing Parties to prepare and file an amendment or supplement to the Purchaser Registration Statement and Prospectus in connection with such underwritten offering, the General Partner may delay the filing of any such amendment or supplement or postpone taking action with respect to an underwritten offering for a period not to exceed an aggregate of 180 days in any calendar year, if the Primary Shares General Partner determines in its good faith judgment that the filing of such amendment or Underlying Shares that are no longer Registrable Securitiessupplement or the taking of such action with respect to an underwritten offering would have a material adverse effect on the business, operations or prospects of the General Partner, or adversely affect a material financing, acquisition, disposition of assets or stock, merger or other comparable transaction. Notwithstanding anything to the contrary contained in the foregoing, the Contributing Parties shall not have the right to effect more than two underwritten offerings pursuant to this paragraph and each such offering shall be required to include minimum gross sales proceeds of $17,500,000.
(df) Registration Statements under Notwithstanding anything to the contrary contained herein, the General Partner shall have no obligation to keep any registration statement filed pursuant to this Section 2 may contain shares other than Registrable Securities in accordance with 4.1 effective after the requirements Expiration Date or if the status of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements General Partner (or its successor) as a result of such piggy-back rightsan Exchange Act Reporting Company is terminated.
Appears in 3 contracts
Samples: Merger Agreement (General Growth Properties Inc), Redemption Rights Agreement (General Growth Properties Inc), Redemption Rights Agreement (General Growth Properties Inc)
Registration. On the earlier of (a) On 30 days following the first date on which the Partnership becomes eligible to use SEC Form S-3 or prior to (b) the Filing first anniversary of the Closing Date, the Company Partnership shall prepare and file with a registration statement under the Commission a Registration Statement covering Securities Act to permit the public resale of all Registrable Securities not already covered then outstanding from time to time as permitted by an existing and effective Rule 415 of the Securities Act with respect to all of the Registrable Securities (the “Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415Statement”). The Registration Statement filed pursuant to this Section 2.1 shall be on Form S-3 (except if such appropriate registration form of the Company is not then eligible to register for resale Commission as shall be selected by the Partnership so long as it permits the continuous offering of the Registrable Securities on Form S-3, in which case pursuant to Rule 415 of the Securities Act or such registration shall be on another appropriate form for such purpose)other rule as is then applicable. The Company Partnership shall use its commercially reasonable best efforts to cause the Registration Statement to become effective on or as soon as practicable after filing. Any Registration Statement shall provide for the resale pursuant to any method or combination of methods legally available to, and requested by, the Holders of any and all Registrable Securities covered by such Registration Statement. The Partnership shall use its commercially reasonable efforts to cause the Registration Statement filed pursuant to this Section 2.1 to be declared effective effective, supplemented and amended to the extent necessary to ensure that it is available for the resale of all Registrable Securities by the Holders until the earlier of (a) the date on which all Registrable Securities have been sold by the Holders, or (b) the first date all Registrable Securities become eligible for sale pursuant to Rule 144(b)(1) under the Securities Act no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
. The Registration Statement when effective (bincluding the documents incorporated therein by reference) If for any reason the Commission does not permit will comply as to form in all material respects with all applicable requirements of the Registrable Securities Act and the Exchange Act and will not contain an untrue statement of a material fact or omit to state a material fact required to be included stated therein or necessary to make the statements therein not misleading (in the case of any prospectus contained in such Registration Statement, in the light of the circumstances under which a statement is made). As soon as practicable following the date that the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be madebecomes effective, but in any event by its Filing Date, an additional Registration Statement covering the resale within two Business Days of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereofdate, the Company Partnership shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by provide the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance Holders with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price written notice of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence effectiveness of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable SecuritiesRegistration Statement.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 3 contracts
Samples: Contribution Agreement, Registration Rights Agreement (USA Compression Partners, LP), Contribution Agreement (USA Compression Partners, LP)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement (i) shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). ) and, if the Company is a WKSI as of the Filing Date, shall be an automatic shelf registration statement; and (ii) shall contain (except if otherwise requested by the Electing Holders or required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” in substantially the form attached hereto as Annex A. The Company shall use its commercially reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no later than the Effectiveness Date, and shall use its reasonable best efforts or otherwise to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared become effective under the Securities Act as soon as possible but, in any event, no later than its the Effectiveness Date, and shall use its commercially reasonable best efforts to keep such the Registration Statement continuously effective under the Securities Act during its entire until the registration rights under this Agreement terminate in accordance with Section 2(b) (the “Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof”). In addition, the Company shall shall, promptly and from time to time, file such additional Registration Statements to cover resales of any Registrable Securities which are not be deemed registered for resale pursuant to have satisfied this clause (i)), or (ii) a pre-existing Registration Statement is not no later than the Filing Date with respect thereto, and shall use its commercially reasonable efforts to cause such Registration Statement to be declared effective by or otherwise to become effective under the Commission on or prior to its required Securities Act as soon as practicable after the applicable Filing Date but, in any event, no later than the applicable Effectiveness Date, or (iii) after and shall use its Effective Date, without regard for commercially reasonable efforts to keep the reason thereunder or efforts therefor other than a Suspension Event Registration Statement continuously effective under the Securities Act at all times during the Effectiveness Period. Notwithstanding anything to the contrary in compliance with this Section 6(c2(a), such Registration Statement ceases for any reason to be effective and available upon notice to the Purchaser as to all Registrable Securities to Holders, the Company may suspend the use or the effectiveness of the Registration Statement, or extend the time period in which it is required to cover at any time prior to file the expiration of its Effectiveness PeriodRegistration Statement, for an aggregate up to 30 days in the aggregate, in any 12-month period (a “Suspension Period”) if the Board of 20 Trading Days Directors of the Company determines that there is a valid business purpose for all such events (any such failure or breach being suspension of the Registration Statement. In the event the Company exercises its rights under the preceding sentence, the Holders agree to suspend, immediately upon their receipt of the notice referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceededabove, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price their use of the affected Prospectus relating to such Registration Statement in connection with any sale or offer to sell Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annumSecurities. The liquidated damages Company shall promptly notify the Holders when the Registration Statement may once again be due and payable in cash used or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitieseffective.
(db) Registration Statements The registration rights granted under this Section 2 may contain shares other than shall automatically terminate as of the date and time at which all of the Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rightsare Freely Tradable.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Daegis Inc.), Registration Rights Agreement (Daegis Inc.), Registration Rights Agreement (Unify Corp)
Registration. (a) On or prior to The Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing DateDeadline”), the Company shall prepare and file with the Commission SEC a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Such Registration Statement shall be on Form S-3 F-3 (except or, if the Company Form F-3 is not then eligible available to register the Company, on such form of Registration Statement as is then available to effect a registration for resale of the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purposeSecurities). The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as soon promptly as possible but, in any event, no later than its Effectiveness Dateafter the filing thereof, and shall use its reasonable best efforts respond to any comments received from the SEC within ten (10) Business Days, and (ii) to keep such Registration Statement continuously effective under the Securities Act during until such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its entire Effectiveness best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on XXXXX, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) If: (i) a Registration Statement The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereofdeemed an underwriter, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for relieved of any reason to be effective and available to the Purchaser as to all Registrable Securities to which obligations it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitieshereunder.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 3 contracts
Samples: Convertible Note and Warrant Purchase Agreement, Convertible Note and Warrant Purchase Agreement (The9 LTD), Convertible Note and Warrant Purchase Agreement (Ark Pacific Investment Management LTD)
Registration. (a) On or prior to Upon the Filing Dateoccurrence of a Triggering Event, ------------ Issuer shall, at the Company shall prepare request of Grantee included in the Exercise Notice, as promptly as practicable prepare, file and file with the Commission keep current a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such shelf registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective statement under the Securities Act no later than covering all Option Shares issued and issuable pursuant to the Effectiveness Date, Option and shall use its best reasonable best efforts to keep cause such registration statement to become effective and remain current in order to permit the Registration Statement continuously sale or other disposition of any Option Shares issued upon exercise of the Option in accordance with any plan of disposition requested by Grantee; provided, however, that Issuer may postpone or suspend the filing or -------- ------- effectiveness of a registration statement relating to a registration request by Grantee under this Section 8 for a period of time (not in excess of 30 days) if such filing or effectiveness would require the disclosure of material information that Issuer has a bona fide business purpose for preserving as ---- ---- confidential or would cause Issuer, at a time when Issuer is otherwise in compliance with all its obligations under this Section 8, to be in violation of the federal securities laws or the rules and regulations thereunder. Issuer will use its best reasonable efforts to cause such registration statement first to become effective under the Securities Act and then to remain effective for 270 days or until the such earlier date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities shares registered shall have been publicly sold by the PurchaserGrantee. In connection with any such registration, or (iii) Issuer and Grantee shall provide each other with representations, warranties, indemnities, contribution and other agreements customarily given in connection with such time as all of the Registrable Securities may be sold pursuant registrations. If requested by Grantee in connection with such registration, Issuer shall become a party to Rule 144(k) one underwriting agreement (the “Effectiveness Period”)managing underwriter(s) thereunder being approved by Issuer, such approval not to be unreasonably withheld or delayed) relating to the sale of such shares, but only to the extent of obligating Issuer in respect of representations, warranties, indemnities, contribution and other agreements customarily made by issuers in such underwriting agreements.
(b) If for any reason In the Commission does not permit all event that Grantee so requests, the closing of the Registrable Securities sale or other disposition of the Option Shares or other securities pursuant to be included in the Registration Statement a registration statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then 8(a) shall occur substantially simultaneously with the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price exercise of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable SecuritiesOption.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 2 contracts
Samples: Stock Option Agreement (Rental Service Corp), Stock Option Agreement (Nationsrent Inc)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). ) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its Effectiveness Date, and shall use its reasonable best efforts to keep the such Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five two years after the Effective Date, (ii) Closing Date or such time as earlier date when all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold without volume restrictions pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or prior to before its required Effectiveness Date, or (iii) after its Effective Dateduring the Effectiveness Period, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be remain continuously effective and available to the Purchaser as to all Registrable Securities to for which it is required to cover at any time prior be effective, or the Holders are not permitted to utilize the expiration of its Effectiveness PeriodProspectus therein to resell such Registrable Securities, for in any and all such cases for more than an aggregate of 20 Trading Days for all during such events Effectiveness Period (which need not be consecutive Trading Days) (any such failure or breach being referred to as an “Event,” and for purposes of clauses clause (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 Trading Day period Days is exceeded, exceeded being referred to as “Event Date”), thenthen in addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.5% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder pursuant to the Purchase Agreement from Agreement; and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser y) on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.5% of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement; provided, that if an Event shall have occurred and be continuing after the 180th day following the Closing Date, the liquidated damages described above shall be calculated by substituting 2.0% in place of 1.5%; and provided further, that no more than one Event shall be deemed to have occurred and not to have been cured at any time, and such payments shall not be cumulative, so that no more than one payment under the foregoing clauses shall be due in any month to any one Holder (except for amounts owing on account of prior periods). If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 10% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy case of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under any Section 2(c) hereof to such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 2 contracts
Samples: Securities Purchase Agreement (Airnet Communications Corp), Registration Rights Agreement (Airnet Communications Corp)
Registration. (a) On or after the earlier of (i) the later of (A) the date on which the Company files its Annual Report on Form 10-K with respect to its 2010 fiscal year, (B) the date on which the registration statement for the Medicsight PLC shares of common stock owned by the Company is declared effective by the SEC, and (C) the date on which all of the assets of MGT (UK) have been disposed of, and (ii) June 30, 2011, the Purchaser shall have the right to request that the Company file the Registration Statement and, upon receipt such request, the Company shall prepare and file the Registration Statement on the terms and conditions set forth in this Agreement. On or prior to the Filing Date, the Company shall prepare and file with the Commission a Registration Statement on Form S-3 covering the resale of the Shares if the Company is then eligible to utilize such Form (or on such other form appropriate for such purpose) and shall cause such Registration Statement to be filed by the Filing Date for such Registration Statement and use commercially reasonable efforts to have the Registration Statement declared effective under the Securities Act as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor. Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement, other than as to the characterization of any Holder as an underwriter, which shall not occur without such Holder’s consent) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period which is applicable to it. By 5:00 p.m. (New York City time) on the Business Day immediately following the Effective Date of such Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule). The Company hereby represents and warrants to the Purchasers that as of the date hereof the Company is eligible to use Form S-3 for the registration of the Registrable Securities.
(b) If for any reason other than due solely to SEC Restrictions, a Registration Statement is effective but not all outstanding Registrable Securities not already covered are registered for resale pursuant thereto, then the Company shall prepare and file by the applicable Filing Date an existing and effective additional Registration Statement to register the resale of all such unregistered Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except Notwithstanding anything to the contrary contained in this Section 2, if the Company is not then eligible receives Commission Comments, and following discussions with and responses to register for resale the Commission in which the Company uses its commercially reasonable efforts and time to cause as many Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time many Holders as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities possible to be included in the Registration Statement filed pursuant to Section Sections 2(a), without characterizing any Holder as an underwriter (and in such regard uses its commercially reasonable efforts to cause the Commission to permit the affected Holders or for any other reason any their respective counsel to participate in Commission conversations on such issue together with Company Counsel, and timely conveys relevant information concerning such issue with the affected Holders or their respective counsel), the Company is unable to cause the inclusion of all Registrable Securities are not included in a Registration Statement filed under this AgreementSecurities, then the Company shall prepare may, following not less than three (3) Trading Days prior written notice to the Holders (i) remove from the Registration Statement such Registrable Securities (the “Cut Back Shares”) and/or (ii) agree to such restrictions and file limitations on the registration and resale of the Registrable Securities, in each case as soon as possible after the date on which the Commission shall indicate as being may require in order for the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering Commission to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each allow such Registration Statement to become effective; provided, that in no event may the Company name any Holder as an underwriter without such Holder’s prior written consent (collectively, the “SEC Restrictions”). Unless the SEC Restrictions otherwise require, any cut-back imposed pursuant to this Section 2(b) shall be allocated among the Registrable Securities of the Holders on a pro rata basis. No liquidated damages under Section 2(c) shall accrue on or as to any Cut Back Shares, and the required Effectiveness Date for such Registration Statement will be tolled, until such time as the Company is able to effect the registration of the Cut Back Shares in accordance with any SEC Restrictions (such date, the “Restriction Termination Date”). From and after the Restriction Termination Date, all provisions of this Section 2 (including, without limitation, the liquidated damages provisions, subject to tolling as provided above) shall again be applicable to the Cut Back Shares (which, for avoidance of doubt, retain their character as “Registrable Securities”) so that the Company will be required to file with and cause to be declared effective under by the Commission such additional Registration Statements in the time frames set forth herein as necessary to ultimately cause to be covered by effective Registration Statements all Registrable Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts (if such Registrable Securities cannot at such time be resold by the Holders thereof without volume limitations pursuant to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness PeriodRule 144).
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date covering the Registrable Securities required under this Agreement to be included therein (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date or if by the Business Day immediately following the Effective Date, the Company shall not have filed a “final” prospectus for the Registration Statement with the Commission under Rule 424(b) in accordance with the terms hereof (whether or not such a prospectus is technically required by such Rule), or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefor, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 Trading Day Day-period is exceeded, being referred to as “Event Date”), then, for so long as then the Holders are entitled to exercise such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash rights they may have hereunder or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the under applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitieslaw.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under Section 2(c) to any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)). In addition to the foregoing, each Holder shall provide such Registration Statements other information to the Company as a result of such piggythe Company may from time-back rightsto-time reasonably request.
Appears in 2 contracts
Samples: Registration Rights Agreement (MGT Capital Investments Inc), Registration Rights Agreement (MGT Capital Investments Inc)
Registration. (a) On or prior to Effectiveness Deadline. Following the Filing date hereof, but no later than 30 days following the Closing Date, the Company Partnership shall prepare and file with a registration statement under the Commission a Registration Statement covering Securities Act to permit the public resale of all Registrable Securities not already covered then outstanding from time to time as permitted by an existing and effective Rule 415 (or any similar provision then in effect) under the Securities Act with respect to all of the Registrable Securities (the “Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415Statement”). The Registration Statement filed pursuant to this Section 2.01(a) shall be on Form S-3 (except if such appropriate registration form or forms of the Company is not then eligible to register for resale Commission as shall be selected by the Partnership so long as it permits the continuous offering of the Registrable Securities on Form S-3, pursuant to Rule 415 (or any similar provision then in which case such registration shall be on another appropriate form for such purpose)effect) under the Securities Act at then-prevailing market prices. The Company Partnership shall use its commercially reasonable best efforts to cause the Registration Statement to be declared become effective under on or as soon as practicable after the Securities Act no later than filing thereof. Any Registration Statement shall provide for the Effectiveness Dateresale pursuant to any method or combination of methods legally available to, and requested by, the Holders of any and all Registrable Securities covered by such Registration Statement. The Partnership shall use its commercially reasonable best efforts to keep cause the Registration Statement continuously effective under filed pursuant to this Section 2.01(a) to be effective, supplemented and amended to the Securities Act until extent necessary to ensure that it is available for the date which is the earlier resale of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as Holders until all of the Registrable Securities may covered by such Registration Statement have ceased to be sold pursuant to Rule 144(k) Registrable Securities (the “Effectiveness Period”).
. The Registration Statement when effective (bincluding the documents incorporated therein by reference) If for any reason the Commission does not permit will comply as to form in all material respects with all applicable requirements of the Registrable Securities Act and the Exchange Act and will not contain an untrue statement of a material fact or omit to state a material fact required to be included stated therein or necessary to make the statements therein not misleading (in the case of any prospectus contained in such Registration Statement or documents incorporated therein by reference, in the light of the circumstances under which a statement is made). As soon as practicable following the date that the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be madebecomes effective, but in any event by its Filing Date, an additional Registration Statement covering the resale within two (2) Business Days of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereofdate, the Company Partnership shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by provide the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance Holders with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price written notice of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence effectiveness of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable SecuritiesRegistration Statement.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 2 contracts
Samples: Common Unit Purchase Agreement (Antero Midstream Partners LP), Registration Rights Agreement
Registration. Upon (ai) On or the exercise of the Lower Strike Option prior to the Filing Date, Expiration Date and the Company shall prepare and file reasonable determination of Party A after consulting with the Commission counsel that a Registration Statement covering is advisable in connection with this Transaction, or (ii) the resale exercise of all Registrable Securities not already covered the Upper Strike Option and the delivery of Shares by Party B to Party A:
(A) Party B will make available to Party A an existing and effective registration statement (the “Registration Statement for an offering to be made on a continuous basis Statement”) filed pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective 415 under the Securities Act no later than the Effectiveness Dateof 1933, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) amended (the “Effectiveness PeriodSecurities Act”).
, and such prospectuses as Party A may reasonably request to comply with the applicable prospectus delivery requirements (bthe “Prospectus”) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale by Party A of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415such number of Shares as Party A shall reasonably specify, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under and Prospectus to be current until the Securities Act date specified by Party A (the “Registration Period”); and
(B) Party B will make the following representation on each day during the Registration Period: “Party B represents that the Registration Statement, at the time the same became effective, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; Party B represents the Prospectus (as soon as possible butthe same may be supplemented from time to time) does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in any eventthe light of the circumstances under which they were made, no later than its Effectiveness Datenot misleading.”;
(C) Party B will enter into a Registration Rights Agreement with Party A in form and substance reasonably acceptable to Party A, which agreement will contain among other things, customary representations and shall use its reasonable best efforts warranties and indemnification and other rights relating to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Periodregistration of a number of Shares.
(cD) If: (i) Party B shall promptly pay to Party A a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or $0.05 per Share fee with all Shares delivered in connection with subparagraph (ii) a Registration Statement is not declared effective by above. In the Commission on or prior event that Party B fails to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance comply with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been curedconditions set forth above, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and Party B shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable promptly pay in cash or through the issuance of Additional Notes (as defined Shares an additional amount to Party A equal to an amount reasonably determined by Party A to cover its costs and losses in the Note), to the Purchaser on each monthly anniversary of each connection with such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiesfailure.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 2 contracts
Samples: Confirmation (Cheniere Energy Inc), Confirmation (Cheniere Energy Inc)
Registration. The Company has received written comments from the SEC with respect to the Initial Registration Statement pertaining to Rule 415, a copy of which has been provided to the Buyers by the Company, which, unless rebutted by the Company, requires the Company to treat the registration of the Initial Shares under the Initial Registration Statement as a “primary offering” with the effect that the Buyers would be deemed to be “underwriters” for purposes of the Securities Act with respect to the sale of the Initial Shares in the Initial Registration Statement. The Company represents and warrants to the Buyers that, after consultation with the Buyers and following discussions with the SEC in which the Company used its reasonable best efforts and devoted a reasonable amount of time to cause as many Registrable Securities as possible to be included in the Initial Registration Statement without characterizing any Designated Holder as an underwriter, the Company has been unable to cause the inclusion of all of the Initial Shares in the Initial Registration Statement and has determined to remove from the Initial Registration Statement a certain portion of the Initial Shares (the “Cut Back Shares”).
(a) On or prior The Company shall use its reasonable best efforts to cause the Initial Registration Statement to be declared effective under the Securities Act as soon as possible, but in any event, no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Initial Registration Statement continuously effective, supplemented and amended to the Filing Dateextent necessary to ensure that it is available for the resale of all Registrable Securities registered thereunder by the Designated Holders and that it conforms in all material respects to the requirements of the Securities Act during the entire period beginning on the Effectiveness Date and ending on the date on which all Registrable Securities registered thereunder have ceased to be Registrable Securities.
(b) No later than the 180th day following the date the Initial Registration Statement is declared effective by the SEC, the Company shall prepare and file with the Commission a SEC an additional Registration Statement covering the resale of all Registrable Securities not already covered by the Initial Registration Statement (including the Cut Back Shares and the shares of Common Stock sold under the New Securities Purchase Agreement) for an offering to be made on a continuous basis pursuant to Rule 415. Such Registration Statement shall provide for the resale from time to time, and pursuant to any method or combination of methods legally available by the Designated Holders of any and all Registrable Securities registered thereunder; provided, however, that the Company shall only be required to register such number of Registrable Securities pursuant to this Section 2.2(b), such that the offering of such Registrable Securities will not be deemed, in the reasonable judgment of the Company after consultation with the Buyers and with the SEC, to be a “primary offering.” The Company shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective, supplemented and amended to the extent necessary to ensure that is available for the resale of all Registrable Securities registered thereunder by the Designated Holders and that it conforms in all material respects to the requirements of the Securities Act during the entire period beginning on the applicable Effectiveness Date and ending on the date on which all Registrable Securities registered thereunder have ceased to be Registrable Securities.
(c) If, for any reason, the Company has been unable to include all of the remaining Registrable Securities (including the Cut Back Shares and the shares of Common Stock issued under the New Securities Purchase Agreement ) in the Registration Statement filed pursuant to Section 2.2(b), then the Company shall prepare and file as soon as reasonably possible after the date on which the SEC shall indicate as being the first date or time that such filing may be made, but in any event by the Filing Date therefore, one or more additional Registration Statements covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Each such Registration Statement shall be on Form S-3 (except if provide for the Company is not then eligible resale from time to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no later than the Effectiveness Datetime, and shall use its reasonable best efforts pursuant to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier any method or combination of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold methods legally available by the Purchaser, or (iii) such time as all Designated Holders of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose)registered thereunder. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment period beginning on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission applicable Effectiveness Date and ending on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected all Registrable Securities paid by the Purchaser pursuant registered thereunder have ceased to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been curedbe Registrable Securities. For so long as the Event has not been curedavoidance of doubt, liquidated damages the Company will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date prepare and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but file additional Registration Statements in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to accordance with the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of until such time as all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that Registrable Securities are no longer Registrable Securitiescovered by effective Registration Statements.
(d) The Company may, at any time it is eligible to do so, file a post-effective amendment on Form S-3 to any Registration Statements under this Section 2 may contain shares other than Statement on Form S-1 for the resale of any then existing Registrable Securities or in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such other manner as is preferred or permitted by the SEC to convert such Registration Statements as Statement to a result Form S-3 Registration Statement. Upon the effectiveness of such piggy-back rightsForm S-3 Registration Statement, all references to a Registration Statement in this Agreement shall then automatically be deemed to be a reference to the Form S-3 Registration Statement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Miscor Group, Ltd.), Registration Rights Agreement (Tontine Capital Partners L P)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be , on Form S-3 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent and the affected Holders (the “"Effectiveness Period”").
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities for resale, the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be declared effective as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor. Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall cause such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period.
(d) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 30 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “"Event,” " and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 30 Trading Day Day-period is exceeded, being referred to as “"Event Date”"), thenthen in addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.0% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder for Shares pursuant to the Purchase Agreement from Agreement; and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser y) on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 2.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement. The parties agree that the Company will not be liable for liquidated damages under this Section in respect of the Warrants. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 10% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy case of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(de) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under Section 2(d) to any such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 2 contracts
Samples: Registration Rights Agreement (Bluebook International Holding Co), Registration Rights Agreement (Bluebook International Holding Co)
Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). ) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the PurchaserHolders, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities Shares and all Warrant Shares to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) ), and (ii) or for purposes of clause (iii) the date on which such 20 twenty Trading Day period is exceeded, being referred to as “Event Date”), then, for so long in addition to any other rights available to the Holders under the Transaction Documents or under applicable law, (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.0% of the affected Registrable Securities paid by the Purchaser aggregate Investment Amount of such Holder pursuant to the Purchase Agreement from Agreement; and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser y) on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 2.0% of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement. If the Company fails to pay any liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The parties agree that the Company will not be liable for liquidated damages under this Section in respect of the Warrant Shares. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Emerge Interactive Inc), Registration Rights Agreement (Emerge Interactive Inc)
Registration. (a) On or prior to the each Filing Date, the Company shall will use commercially reasonable efforts to prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement (i) shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose)) and, if the Company is a WKSI as of the Filing Date, shall be an Automatic Shelf Registration Statement and (ii) shall contain (except if otherwise requested by the Electing Holders or required pursuant to written comments received from the Commission upon a review of such Registration Statement) the Plan of Distribution. The Company shall will use its commercially reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no later than the Effectiveness Date, and shall use its reasonable best efforts or otherwise to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared become effective under the Securities Act as soon as possible but, in any event, no later than its the Effectiveness Date, and shall will use its their commercially reasonable best efforts to keep the Registration Statement (or a replacement Registration Statement) continuously effective under the Securities Act until the registration rights under this Agreement terminate in accordance with Section 2(d) (the “Effectiveness Period”). In addition, the Company will, promptly and from time to time, use commercially reasonable efforts to file such additional Registration Statements to cover resales of any Registrable Securities which are not registered for resale pursuant to a pre-existing Registration Statement no later than the Filing Date with respect thereto, and will use its commercially reasonable efforts to cause such Registration Statement to be declared effective or otherwise to become effective under the Securities Act as soon as practicable after the applicable Filing Date but, in any event, no later than the applicable Effectiveness Date, and will use their commercially reasonable efforts to keep the Registration Statement continuously effective under the Securities Act at all times during its entire the Effectiveness Period; provided that, the Company will not be obligated to update the Registration Statement and no sales may made under the applicable Registration Statement during any Black-Out Period of which the Holders have received notice.
(cb) If: (i) a any Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereofDate, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission or does not otherwise become effective on or prior to its required Effectiveness Date, Date or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its the Effectiveness Period (in each case, except as specifically permitted herein with respect to any applicable Black-Out Period, for an aggregate of 20 Trading Days for all such events ) (any such failure or breach being referred to as an a “Event,” and for purposes of clauses Registration Default”).
(ic) and (ii) or for purposes of clause (iii) The Company shall not, from the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within hereof until the Effectiveness Period, liquidated damages will accrue based on the Purchase Price Effective Date of the affected Registrable initial Registration Statement, prepare and file with the Commission a registration statement relating to an offering of any of its securities for its own account or the account of others under the Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable SecuritiesAct.
(d) Registration Statements The registration rights granted under this Section 2 may contain shares other than shall automatically terminate upon the earlier of (i) such time as there are no outstanding Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreementsand (ii) June 3, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights2019.
Appears in 2 contracts
Samples: Registration Rights Agreement, Registration Rights Agreement (Netflix Inc)
Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be , on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier earliest of (i) five years after the its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (the “Effectiveness Period”); provided, that, during the Effectiveness Period, the Registration Statement may cease to be effective for no more than 60 Trading Days (not more than 15 Trading Days of which shall be consecutive) during any 365 calendar day period. By 9:30 a.m. (New York City time) on the Trading Day immediately following the Effective Date, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(b) If for any reason Each Holder agrees to furnish to the Commission does not permit all of the Registrable Securities to be included Company a completed Questionnaire in the Registration Statement filed pursuant form attached to Section 2(a), or for any other reason any Registrable Securities are not included in this Agreement as Annex B (a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose“Selling Holder Questionnaire”). The Company shall use its reasonable best efforts not be required to cause each such Registration Statement to be declared effective under include the Registrable Securities Act as soon as possible but, of a Holder in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior who fails to its Filing Date (if furnish to the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover fully completed Selling Holder Questionnaire at any time least two Trading Days prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Filing Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant subject to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this requirements set forth in Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities3(a)).
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 2 contracts
Samples: Registration Rights Agreement (Magnetar Capital Partners LP), Registration Rights Agreement (Think Partnership Inc)
Registration. (a) On or prior to the Filing Date, the The Company shall prepare and file file, as soon as practicable, but in no event later than two (2) months after the Closing Date (the “Filing Deadline”), with the Commission SEC a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Such Registration Statement shall be on Form S-3 F-3 (except or, if the Company Form F-3 is not then eligible available to register the Company, on such form of Registration Statement as is then available to effect a registration for resale of the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purposeSecurities). The Company shall use its reasonable best efforts (i) to cause the such Registration Statement to be declared effective by the SEC under the Securities Act no later than (unless it becomes effective automatically upon filing) as promptly as possible after the Effectiveness Datefiling thereof, and shall use its reasonable best efforts respond to any comments received from the SEC within ten (10) Business Days, and (ii) to keep the such Registration Statement continuously effective under the Securities Act until the date on which is all Registrable Securities covered by such Registration Statement have been sold (the earlier “Effective Period”). Such Registration Statement shall not include any Shares or other securities for the account of any other holder without the prior written consent of Purchaser. Notwithstanding the registration obligations set forth in this Section 5.18, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) five years after inform each Holder and use its best efforts to file amendments to the Effective Date, Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such time other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 5.18(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been publicly sold disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by the Purchaser, or such Registration Statement;
(iii) furnish to each Holder a Prospectus which requirement may be fulfilled by the public filing of such time Prospectus on the Electronic Data Gathering, Analysis and Retrieval system of the SEC, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as all the Purchaser may reasonably request in order to facilitate the disposition of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).owned by it that are included in such registration;
(biv) If notify each Holder and its counsel in writing (A) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (B) of the receipt by the Company of any reason notification with respect to the Commission does not permit all issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (C) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (D) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405 of the Securities Act;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (A) any order suspending the effectiveness of the Registration Statement, or (B) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Purchaser;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be included stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Shares (including American depositary shares representing the Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement filed pursuant cause an opinion of legal counsel as to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after effectiveness of the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Purchaser under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness PeriodStatement.
(c) If: (i) a Registration Statement The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereofdeemed an underwriter, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for relieved of any reason to be effective and available to the Purchaser as to all Registrable Securities to which obligations it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitieshereunder.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Ark Pacific Investment Management LTD)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a the Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement required hereunder shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration the Registration shall be on another appropriate form for such purposein accordance herewith). The Registration Statement required hereunder shall contain (except if otherwise directed by the Holders) the “Plan of Distribution” attached hereto as Annex A. Subject to the terms of this Agreement, the Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no as promptly as possible after the filing thereof, but in any event not later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as when all of the Registrable Securities covered by the Registration Statement have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold without volume restrictions pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities Shares to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not then included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 . Each such Registration Statement shall contain (except if otherwise directed by the Company is not then eligible to register for resale Holders) the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) prior to the date when such Registration Statement is first declared effective by the Commission, the Company fails to file a pre-effective amendment and otherwise respond in writing to comments made by the Commission in respect of such Registration Statement within 30 calendar days (the “Response Date”) after the receipt of comments by or notice from the Commission that such amendment is required in order for such Registration Statement to be declared effective, or (iii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or prior to before its required Effectiveness Date, or (iiiiv) after its Effective Dateduring the Effectiveness Period, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be remain continuously effective and available to the Purchaser as to all Registrable Securities to for which it is required to cover at any time prior be effective, or the Holders are not permitted to utilize the expiration of its Effectiveness PeriodProspectus therein to resell such Registrable Securities, for in any and all such cases for more than an aggregate of 20 Trading Days for all such events (the “Grace Period”) during any 12-month period during the Effectiveness Period (which need not be consecutive Trading Days)(any such failure or breach being referred to as an “Event,” and for purposes of clauses clause (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period Event occurs, or for purposes of clause (ii) the date which such 30 calendar days is exceeded, or for purposes of clause (iv) the date on which such 20 Trading Days is exceeded being referred to as “Event Date”), thenthen in addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.5% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder pursuant to the Purchase Agreement from Agreement; and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser y) on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.5% of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 10% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy case of the Purchaser under this Agreement for an Eventfirst Event Date. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to any day on which a Force Majeure has occurred or is continuing shall not count toward the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements calculation of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as days for the Filing Date, the Effectiveness Date, the Response Date and a result of such piggy-back rightsGrace Period.
Appears in 2 contracts
Samples: Registration Rights Agreement (Dor Biopharma Inc), Registration Rights Agreement (Dor Biopharma Inc)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Such Registration Statement shall be on Form S-3 contain (except if otherwise required pursuant to written comments received from the Company is not then eligible to register for resale Commission upon a review of such Registration Statement) the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period. Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities for resale, but in no event more than thirty days after such date, the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be declared effective as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefor, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 Trading Days for all such events in any twelve-month period (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 Trading Day Day-period is exceeded, being referred to as “Event Date”), thenthen in addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.0% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder for Shares pursuant to the Purchase Agreement from Agreement; and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser y) on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement. The parties agree that the Company will not be liable for liquidated damages under this Section in respect of the Warrants. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 10% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy case of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under Section 2(c) to any such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 2 contracts
Samples: Securities Purchase Agreement (Granite Partners, L.L.C.), Securities Purchase Agreement (Granite City Food & Brewery LTD)
Registration. (ai) On or prior Tilray’s obligation to include a Seller’s Registrable Securities in the Filing DateRegistration Statement is contingent upon such Seller furnishing in writing to Tilray such information regarding the Seller, the Company securities of Tilray held by such Seller and the intended method of distribution of the Registrable Securities as shall prepare be reasonably requested by Tilray to effect the registration of the Registrable Securities, and file the Sellers shall execute such documents in connection with such registration as Tilray may reasonably request that are customary of a selling stockholder in similar situations. Tilray shall, in the case of a newly filed Registration Statement, cause such Registration Statement to become effective upon filing with the Commission a Registration Statement covering under the resale of all Registrable U.S. Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3Act and, in which the case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause the of a prospectus supplement or a newly filed Registration Statement to be declared effective under the Securities Act no later than the Effectiveness DateStatement, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the U.S. Securities Act until during the date which is the earlier of (i) five years after the Effective Date, Effectiveness Period.
(ii) such time as all If the Registration Statement covering resales of the Registrable Securities ceases to be effective for any reason at any time during the Effectiveness Period (other than because all securities registered thereunder shall have been publicly sold by resold pursuant thereto or shall have otherwise ceased to be Registrable Securities), Tilray shall use its commercially reasonable efforts to obtain the Purchaserprompt withdrawal of any order suspending the effectiveness thereof, and amend the Registration Statement in a manner reasonably expected to obtain the withdrawal of the order suspending the effectiveness thereof, or file an additional Registration Statement with the Commission so that all Registrable Securities outstanding as of the date of such filing are covered by a Registration Statement. If a new Registration Statement is filed, Tilray shall use its commercially reasonable efforts to cause the new Registration Statement to become effective as promptly as is practicable after such filing and to keep the new Registration Statement continuously effective until the end of the Effectiveness Period.
(iii) Tilray shall amend and supplement the Prospectus and amend the Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by Tilray for such time Registration Statement or file a new Registration Statement, if required by the U.S. Securities Act, or any other documents necessary to name a Notice Holder as all a selling securityholder pursuant to Section (a)(v).
(iv) [Reserved].
(v) Each Seller may sell Registrable Securities pursuant to a Registration Statement and related Prospectus only in accordance with this Section (a)(v) and Section (b)(vii). Each Seller wishing to sell Registrable Securities pursuant to the Resale Documents shall deliver a completed Notice and Questionnaire to Tilray prior to any intended distribution of Registrable Securities under the Resale Documents. From and after the Registration Effective Date, Tilray shall, as promptly as practicable after the date completed Notice and Questionnaires from one or more Notice Holders holding at least one million (1,000,000) Registrable Securities are delivered, and in any event no later than the later of (x) twenty (20) calendar days after such date or (y) twenty (20) calendar days after the expiration of any Deferral Period in effect when the Notice and Questionnaire are delivered or put into effect within five (5) Business Days of such delivery date (but in any event, not more than once in any fiscal quarter):
(A) if required by applicable law, use commercially reasonable efforts to file with the Commission a post-effective amendment to the Registration Statement or prepare and, if required by applicable law, file a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or file a new Registration Statement or any other required document so that the Seller delivering such Notice and Questionnaire is named as a selling securityholder in a Registration Statement and the related Prospectus in such a manner as to permit such Seller to deliver such Prospectus to purchasers of the Registrable Securities may be sold pursuant in accordance with applicable law and, if Tilray shall file a post-effective amendment to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreementor shall file a new Registration Statement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company Tilray shall use its commercially reasonable best efforts to cause each such post-effective amendment or new Registration Statement to be declared or become effective under the U.S. Securities Act as promptly as is practicable;
(B) provide such Seller, upon request and without charge, copies of any documents filed pursuant to Section (a)(v)(A); and
(C) notify Special Counsel as promptly as practicable after the effectiveness under the U.S. Securities Act of any new Registration Statement or post-effective amendment filed pursuant to Section (a)(v)(A); provided that if such Notice and Questionnaire are delivered during a Deferral Period, Tilray shall so inform the Seller delivering such Notice and Questionnaire and shall take the actions set forth in clauses (A), (B) and (C) above upon expiration of the Deferral Period in accordance with Section (b)(vii). Notwithstanding anything contained herein to the contrary, (i) Tilray shall be under no obligation to name any Seller that is not a Notice Holder as a selling securityholder in any Registration Statement or related Prospectus and (ii) if the Commission prevents Tilray 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 under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price resale of the affected Registrable Securities paid Shares held by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cureda Notice Holder or any other Notice Holder or otherwise, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Shares to be registered for each Notice Holder in the Registration Statement shall not be cutback under any reduced pro rata among all such selling securityholders such that the Registration Statements Statement shall register for resale such number of Shares which is equal to the maximum number of Shares as a result of such piggy-back rightsis permitted by the Commission.
Appears in 2 contracts
Samples: Assignment and Assumption Agreement (Tilray, Inc.), Assignment and Assumption Agreement (Tilray, Inc.)
Registration. (a1) On or prior Subject to the Filing terms and conditions of this Agreement, the Company covenants and agrees that as promptly as practicable after the Closing Date (and in any event, (i) for all Registrable Securities other than the Series B Stock, no later than the date that is 30 days after the Closing Date and (ii) for the Series B Stock, if the shares of Series B Stock are still outstanding and “Registrable Securities” pursuant to Section 4.9(k)(4), no later than the date that is 120 days after the Closing Date), the Company shall prepare have prepared and file filed with the Commission a SEC one or more Shelf Registration Statements covering such Registrable Securities (or otherwise designate an existing Shelf Registration Statement covering filed with the resale of all SEC to cover such Registrable Securities not already covered by an existing and effective Securities), and, to the extent the Shelf Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company has not theretofore been declared effective or is not then eligible to register for resale automatically effective upon such filing, the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause the such Shelf Registration Statement to be declared or become effective and to keep such Shelf Registration Statement continuously effective and in compliance with the Securities Act and usable for resale of such Registrable Securities for a period from the date of its initial effectiveness until the time as there are no such Registrable Securities remaining (including by refiling such Shelf Registration Statement (or a new Shelf Registration Statement) if the initial Shelf Registration Statement expires). Notwithstanding the foregoing, if on the filing deadlines referenced above the Company is not eligible to file a registration statement on Form S-3, then the Company shall not be obligated to file a Shelf Registration Statement unless and until requested to do so in writing by the Investors.
(2) Any registration pursuant to this Section 4.9(a) shall be effected by means of a shelf registration under the Securities Act no later than (a “Shelf Registration Statement”) in accordance with the Effectiveness Date, methods and shall use its reasonable best efforts to keep distribution set forth in the Shelf Registration Statement continuously effective under and Rule 415. If the Securities Act until the date which is the earlier Investors or any other holder of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities to whom the registration rights conferred by this Agreement have been publicly sold transferred in compliance with this Agreement intends to distribute any Registrable Securities by means of an underwritten offering it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 4.9(c). The lead underwriters in any such distribution shall be selected by the Purchaser, or (iii) such time as all holders of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all a majority of the Registrable Securities to be distributed.
(3) The Company shall not be required to effect a registration (including a resale of Registrable Securities from an effective Shelf Registration Statement):
(A) with respect to securities that are not Registrable Securities or with respect to Registrable Securities that cannot be sold under a registration statement as a result of the Transfer restrictions set forth herein;
(B) during any Scheduled Black-out Periods;
(C) if, during the 6-month period following the Closing, there is existing or pending any acquisition or probable acquisition, business combination or other similar transaction (a “Material Event”) that, in the good faith judgment of the Board of Directors, would make it inappropriate or inadvisable to effect such registration to be effected at such time, in which event the Company shall have the right to defer such registration during such period until, in the good faith judgment of the Board of Directors, public disclosure of such Material Event or the omission to disclose such Material Event would not be prejudicial or contrary to the interests of the Company; or
(D) if the Company has notified the Investors and all other Holders that in the good faith judgment of the Board of Directors, it would be materially detrimental to the Company or its security holders for such registration to be effected at such time, in which event the Company shall have the right to defer such registration for a period of not more than 45 days after receipt of the request of the Investors or any other Holder; provided, that such right to delay a registration pursuant to this clause (D) shall be exercised by the Company (x) only if the Company has generally exercised (or is concurrently exercising) similar black-out rights (if any) against holders of similar securities that have registration rights and (y) not more than two times in any 12-month period and not more than 90 days in the aggregate in any 12-month period.
(4) If during any period when the Shelf Registration Statement is not effective or available, the Company proposes to register any of its securities, other than a registration pursuant to Section 4.9(a)(1) or a Special Registration, and the registration form to be filed may be used for the registration or qualification for distribution of Registrable Securities, the Company shall give prompt written notice to the Investors and all other Holders of its intention to effect such a registration (but in no event less than ten days prior to the anticipated filing date) and shall include in such registration all Registrable Securities with respect to which the Company has received written requests for inclusion therein within ten business days after the date of the Company’s notice (a “Piggyback Registration”). Any such person that has made such a written request may withdraw its Registrable Securities from such Piggyback Registration by giving written notice to the Company and the managing underwriter, if any, on or before the fifth business day prior to the planned effective date of such Piggyback Registration. The Company may terminate or withdraw any registration under this Section 4.9(a)(4) prior to the effectiveness of such registration, whether or not the Investors or any other Holders have elected to include Registrable Securities in such registration.
(5) If the registration referred to in Section 4.9(a)(4) is proposed to be underwritten, the Company shall so advise the Investors and all other Holders as a part of the written notice given pursuant to Section 4.9(a)(4). In such event, the right of the Investors and all other Holders to registration pursuant to this Section 4.9(a) shall be conditioned upon such persons’ participation in such underwriting and the inclusion of such persons’ Registrable Securities in the underwriting, and each such person shall (together with the Company and the other persons distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company. If any participating person disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to the Company, the managing underwriter and the Investors.
(6) If (x) the Company grants “piggyback” registration rights to one or more third parties to include their securities in an underwritten offering under the Shelf Registration Statement pursuant to Section 4.9(a)(2) or (y) a Piggyback Registration under Section 4.9(a)(4) relates to an underwritten primary offering on behalf of the Company, and in either case the managing underwriters advise the Company that in their reasonable opinion the number of securities requested to be included in such offering exceeds the number which can be sold without adversely affecting the marketability of such offering (including an adverse effect on the per share offering price), the Company shall include in such registration or prospectus only such number of securities that in the reasonable opinion of such underwriters can be sold without adversely affecting the marketability of the offering (including an adverse effect on the per share offering price), which securities shall be so included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale following order of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) Ifpriority: (i) first, in the case of a Piggyback Registration Statement is not filed on or prior to its Filing Date (if under Section 4.9(a)(4), the securities the Company files a Registration Statement without affording the Purchaser the opportunity proposes to review and comment on the same as required by Section 3(a) hereofsell, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by second, Common Stock and other securities of the Commission on or prior Company issued to its required Effectiveness DateTreasury, or (iii) after its Effective Datethird, without regard for Registrable Securities of the reason thereunder Investors and all other Holders who have requested registration of Registrable Securities pursuant to Sections 4.9(a)(2) or efforts therefor other than a Suspension Event in compliance with Section 6(c4.9(a)(4), as applicable, pro rata on the basis of the aggregate number of such Registration Statement ceases for securities or shares owned by each such person and (iv) fourth, any reason other securities of the Company that have been requested to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Periodso included, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant subject to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable SecuritiesAgreement.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 2 contracts
Samples: Investment Agreement (Sterling Financial Corp /Wa/), Investment Agreement (Sterling Financial Corp /Wa/)
Registration. (a) On or prior The General Partner shall (i) prepare, file and use reasonable best efforts to cause to become effective as soon as practicable thereafter a registration statement (the "Issuance Registration Statement"), which may be on Form S-3, under the Securities Act relating to the Filing Date, Shares issuable by the Company shall General Partner upon exercise of the Redemption Rights assuming full conversion of the Series C Preferred Units into Common Units and full satisfaction of the Redemption Rights by delivery of Shares and (ii) prepare and file with the Commission a SEC such amendments and supplements to the Issuance Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Issuance Registration Statement effective and to comply with the provisions of the Securities Act. The General Partner shall file the Issuance Registration Statement during the Window Period.
(b) In the event that, for any reason, the General Partner (i) is unable to cause the Issuance Registration Statement to be declared effective by the SEC within ninety (90) days following the filing date thereof or (ii) otherwise determines that it will be unable to cause the Issuance Registration Statement to be declared effective by the SEC within such ninety (90) day period or that it will be unable or impracticable to keep the Issuance Registration Statement continuously effective, the General Partner shall file with the SEC, within thirty (30) days after the earlier of such ninetieth day and the date of such determination, a registration statement on Form S-3 or other appropriate registration form with the SEC covering the resale by Contributing Party of all Registrable Securities not already covered by an existing such Shares and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause such registration statement (the "Section 4.1(b) Resale Registration Statement") to become effective as soon as practicable thereafter. Following the effective date of the Section 4.1(b) Resale Registration Statement and until the Shares covered by the Section 4.1(b) Resale Registration Statement have been sold or are eligible for resale under Rule 144(k) promulgated under the Securities Act, the General Partner shall keep the Section 4.1(b) Resale Registration Statement current, effective and available for the resale by Contributing Party of the Shares delivered to it pursuant hereto.
(c) If the Issuance Registration Statement is not effective for any reason, Shares are issued to the Contributing Party without registration under the Securities Act and a Section 4.1(b) Resale Registration Statement covering the resale of such Shares is not effective, the General Partner shall, upon the written request of any Contributing Party (a "Demand Notice"), cause to be filed as soon as practicable after the date of such request by such Contributing Party a registration statement (a "Demand Resale Registration Statement" and each of a Demand Resale Registration Statement and a Section 4.1(b) Resale Registration Statement is hereinafter sometimes referred to as a "Resale Registration Statement") in accordance with Rule 415 under the Securities Act (or such other rule as is applicable to the proposed sale) relating to the sale by such Contributing Party of all or a portion of the Shares held by such Contributing Party in accordance with the terms hereof, and shall use reasonable best efforts to cause such Demand Resale Registration Statement to be declared effective under by the Securities Act no later than the Effectiveness Date, and shall SEC as soon as practicable thereafter. The General Partner agrees to use its reasonable best efforts to keep the Demand Resale Registration Statement continuously effective under effective, after its date of effectiveness, with respect to the Securities Act Shares of the requesting Contributing Party until the date which is the earlier of (ia) five years after the Effective Date, (ii) such time as date on which all of the Registrable Securities Shares covered by the Demand Resale Registration Statement have been publicly sold by and (b) the Purchaser, or (iii) such time as date on which all of the Registrable Securities may be sold Shares held by such Contributing Party have become eligible for sale pursuant to Rule 144(k) (the “Effectiveness Period”or any successor provision).
(bd) If for any reason During the Commission does not permit all time period when a Resale Registration Statement is required to be current, effective and available under this Section 4.1, the General Partner also shall:
(i) promptly prepare and file with the SEC such amendments and supplements to such Resale Registration Statement and the Prospectus relating thereto, as may be necessary to keep such Resale Registration Statement effective and to comply with the provisions of the Registrable Securities Act with respect to the sale of the Shares covered by such Resale Registration Statement whenever Contributing Party shall desire to sell or otherwise dispose of the same but in no event beyond the period in which the Registration Statement is required to be kept in effect. Upon ten (10) business days' notice, the General Partner shall file any supplement or post-effective amendment to such Resale Registration Statement with respect to the plan of distribution or a Contributing Party's ownership interests in its Shares that is reasonably necessary to permit the sale of such Contributing Party's Shares pursuant to such Resale Registration Statement;
(ii) furnish to Contributing Party, without charge, such number of authorized copies of the Prospectus relating thereto, and any amendments or supplements to such Prospectus, in conformity with the requirements of the Securities Act, and such other documents as Contributing Party may reasonably request in order to facilitate the public sale or other disposition of the Shares owned by Contributing Party;
(iii) register or qualify the securities covered by such Resale Registration Statement under state securities or blue sky laws of such jurisdictions as are reasonably required to effect a sale thereof and do any and all other acts and things which may be necessary or appropriate under such state securities or blue sky laws to enable Contributing Party to consummate the public sale or other disposition in such jurisdictions of such securities;
(iv) before filing any amendments or supplements to such Resale Registration Statement or the Prospectus relating thereto, furnish copies of all such documents proposed to be filed to the Contributing Party, who shall be afforded a reasonable opportunity to review and comment thereon; provided, however, that all such documents shall be subject to the approval of the Contributing Party insofar as they relate to information concerning the Contributing Party (including, without limitation, the proposed method of distribution of Contributing Party's securities);
(v) notify Contributing Party promptly (A) when such Resale Registration Statement has become effective and when any post-effective amendments and supplements thereto become effective, (B) of any request by the SEC or any state securities authority for amendments and supplements to such Resale Registration Statement and the Prospectus relating thereto or for additional information, and (C) of the happening of any event during the period such Resale Registration Statement is effective which in the judgment of the General Partner makes any statement made in such Resale Registration Statement or such Prospectus untrue in any material respect or which requires the making of any changes in such Resale Registration Statement or such Prospectus in order to make the statements therein not misleading;
(vi) cooperate with Contributing Party to facilitate the timely preparation and delivery of certificates representing Shares being sold, which certificates shall not bear any restrictive legends provided the Shares evidenced thereby have been sold in a manner permitted by the Prospectus relating to such Resale Registration Statement;
(vii) upon the occurrence of any event contemplated by clause (v)(C) above, promptly prepare and file a supplement or post-effective amendment to such Resale Registration Statement or the Prospectus relating thereto or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Shares, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein in light of the circumstances under which they were made, not misleading; provided, however, that the obligation to prepare and file any such supplement or post-effective amendment shall be suspended if the General Partner, relying upon advice of counsel, determines that disclosure of any information required to be included therein would be adverse to its interests, but such suspension (A) shall not extend beyond sixty (60) days with respect to any such specified event and (B) shall not occur more than twice during any period of twelve (12) consecutive months; and
(viii) promptly notify each Contributing Party of, and confirm in writing, (A) the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of such Resale Registration Statement filed pursuant to Section 2(a)or the initiation of any proceedings for that purpose, or for (ii) if, between the effective date of any other reason any Registrable Securities are not included in a such Resale Registration Statement filed under this Agreementand the sale of the Shares to which it relates, then the Company shall prepare and file as soon as possible after General Partner receives any notification with respect to the date on which suspension of the Commission shall indicate as being qualification of the first date Shares or time that such filing may be made, but in initiation of any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form proceeding for such purpose). The Company General Partner shall use its reasonable best efforts to cause each obtain the withdrawal of any order suspending the effectiveness of such a Registration Statement at the earliest practicable time.
(e) The General Partner hereby agrees to be declared effective indemnify and hold harmless Contributing Party and each person, if any, who controls Contributing Party (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) from and against any and all losses, claims, damages, costs and expenses (including reasonable attorneys' fees) ("Claims") to which Contributing Party or such controlling person may become subject, under the Securities Act as soon as possible butor otherwise, caused by any untrue statement or alleged untrue statement of a material fact contained in any eventResale Registration Statement or the Prospectus relating thereto or any amendment or supplement thereto, no later than its Effectiveness Dateor caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and shall reimburse such Contributing Party and each such controlling person for any legal or other expenses reasonably incurred by such Contributing Party in connection with investigating or defending any such loss as such expenses are incurred; provided, however, that the General Partner shall not be liable insofar as any such losses, claims, damages, costs and expenses (including reasonable attorneys' fees) are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information furnished in writing to the General Partner by any Contributing Party expressly for use its therein. Each Contributing Party agrees to indemnify and hold harmless the General Partner and each person, if any, who controls the General Partner (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) from and against any and all Claims to which the General Partner or such controlling person may become subject, under the Securities Act or otherwise, caused by any untrue statement or omission or alleged untrue statement or omission based upon such information furnished in writing to the General Partner by such Contributing Party.
(f) Each Contributing Party agrees that, upon receipt of any notice from the General Partner of the happening of any event of the kind described in clause (d)(v)(C) above and without waiving any rights under clause (d)(vii) above, such Contributing Party will forthwith discontinue disposition of securities pursuant to any Resale Registration Statement until Contributing Party's receipt of the copies of the supplemented or amended Prospectus contemplated by clause (d)(vii) above.
(g) The General Partner shall bear all expenses relating to filing the Issuance Registration Statement and each Resale Registration Statement (collectively, the "Registration Statements") and keeping the Registration Statements current, effective and available; provided, however, that the General Partner shall not be responsible for any brokerage fees or underwriting commissions due and payable in connection with the sale of Shares.
(h) The General Partner shall use reasonable best efforts to keep such Registration Statement continuously effective under cause all Shares to be listed or otherwise eligible for full trading privileges on the Securities Act during its entire Effectiveness Period.
principal national securities exchange (ccurrently the New York Stock Exchange) If: (i) a Registration Statement is not filed on which shares of Common Stock are then listed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) before the date on which such 20 Trading Day period a Registration Statement covering the Shares becomes effective or the Shares are issued by the General Partner to a Contributing Party, whichever is exceeded, being referred later. The General Partner will use reasonable best efforts to as “Event Date”), then, continue the listing or trading privilege for so long as such event is within the Effectiveness Period, liquidated damages will accrue based all Shares on the Purchase Price exchange on which shares of Common Stock are then listed. The General Partner will promptly notify the Contributing Party of, and confirm in writing, the delisting of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable SecuritiesShares.
(di) Notwithstanding anything to the contrary contained herein, the General Partner shall have no obligation to keep any Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with Statement effective if the requirements status of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements General Partner (or its successor) as a result of such piggy-back rightsan Exchange Act Reporting Company is terminated.
Appears in 2 contracts
Samples: Redemption Rights Agreement (General Growth Properties Inc), Redemption Rights Agreement (General Growth Properties Inc)
Registration. (a) On If at any time after the 30-month anniversary of the Effective Date (or prior to in connection with any Lock-up Exception Offering permitted under clause 5.02(a)(viii)) the Company receives a written request from the Investors’ Representative, on behalf of the Investors, that the Company register Registrable Securities under the Securities Act, then the Company shall, as promptly as reasonably practicable, but not later than the 30th day after receipt of such written request (any such date of filing, the “Filing Date”), the Company shall prepare and file with the Commission SEC a Registration Statement covering providing for the resale offer and sale for cash by the Investors of all the Registrable Securities not already covered by an existing and effective Registration Statement (giving effect to any amendments thereto) for an offering to be made on a delayed or continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be be, at the election of the Investors’ Representative on behalf of the Investors, on Form S-1 or another appropriate form for such purpose)) and, if the Company is a WKSI as of the Filing Date, shall be an Automatic Shelf Registration Statement. The Thereafter, the Company shall use its commercially reasonable best efforts to cause the any such Registration Statement to be declared effective or otherwise to become effective under the Securities Act as soon as reasonably practicable but, in any event, no later than the Effectiveness DateDeadline, and shall use its commercially reasonable best efforts to keep the such Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Company Common Shares subject to this Article III cease to be Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for At any reason time and from time to time on or after the Commission does not permit all 30-month anniversary of the Effective Date (or in connection with any Lock-up Exception Offering permitted under clause 5.02(a)(viii)), upon the written request (a “Demand Notice”) of any Investor requesting that the Company effect an Underwritten Offering of Registrable Securities to be included in of the Registration Statement filed pursuant to Section 2(aInvestors (a “Demand Offering”), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file use its commercially reasonable efforts to effect, as soon promptly as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Datereasonably practicable, an additional Registration Statement covering Underwritten Offering of such Registrable Securities; provided, however, (w) at the resale time of all Registrable Securities not already covered by the Demand Offering, there shall be an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale Section 3.01(a) that covers the Registrable Securities on Form S-3for which a Demand Offering has been requested or the Company shall then be WKSI eligible, in which case such registration (x) with respect to any Registrable Securities, the Company shall be on another appropriate form for obligated to effect no more than one Roadshow Offering in any 12-month period (provided, that if any such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement Roadshow Offering is reasonably likely to be declared effective under completed outside of such 12-month period, the Company’s obligations to effect such Demand Offering shall continue) and (y) the Registrable Securities Act as soon as possible but, in any event, no later for which a Demand Offering has been requested will have a value (based on the average closing price per share of Company Common Shares for the ten trading days preceding the delivery of such Demand Notice) of not less than its Effectiveness Date, $150,000,000. Each such Demand Notice will specify the number of Registrable Securities owned by the demanding Investors and shall use its reasonable best efforts the number of Registrable Securities proposed to keep such Registration Statement continuously effective under be offered for sale and will also specify the Securities Act during its entire Effectiveness Periodintended method of distribution thereof.
(c) If: In the event of a Demand Offering, the Underwriters (iincluding the lead Underwriter) for such Demand Offering will be a Registration Statement is not filed nationally recognized investment bank selected by the Investors’ Representative on or prior to its Filing Date (if behalf of the Investors with the approval of the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company (which approval shall not be deemed to have satisfied this clause (iunreasonably withheld)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements Notwithstanding anything to the contrary in this Agreement, the Investors may not request a Demand Offering during a period commencing upon the date of the public announcement of (or such earlier date that is not more than 30 days prior to such public announcement if the Company has given notice to the Investors’ Representative that it so intends to publicly announce) an Underwritten Offering of Company Common Shares by the Company (for its own account or for any other security holder in each case provided the Investors are entitled to participate in such offering pursuant to Section 3.02) and ending (i) 90 days after the consummation of such Underwritten Offering, (ii) 30 days after the Company has given notice to the Investors’ Representative that it intends to publicly announce an Underwritten Offering if no such Underwritten Offering has been publicly announced within such 30-day period, (iii) upon withdrawal of such Underwritten Offering if it has been publicly announced but not commenced or (iv) upon written notice to the Investors’ Representative that the Company no longer intends to conduct an Underwritten Offering.
(e) The Investors will be permitted to rescind a Demand Notice or request the removal of any Registrable Securities held by them from any Demand Offering at any time (so long as, in the case of a Demand Offering, after such removal it would still constitute a Demand Offering, including with respect to the required value thereof under Section 3.01(b)); provided, however, that, if the Investors rescind a Roadshow Offering, such Roadshow Offering will nonetheless count as a Roadshow Offering for purposes of determining when future Roadshow Offerings can be requested by the Investors pursuant to this Section 2 may contain shares other than Registrable Securities 3.01, unless the Investors reimburse the Company for all Offering Expenses incurred by the Company in accordance connection with the requirements of piggy-back rights granted under predecessor agreements, such Roadshow Offering (provided, that the number of Registrable Securities Investors shall not be cutback under required to so reimburse the Company for the Company’s out-of-pocket expenses incurred to prepare and file any Registration Statement pursuant to Section 3.01(a) or any amendment thereto necessary to maintain the effectiveness of such Registration Statements as a result Statement or for the Company’s internal expenses (including all salaries and expenses of such piggy-back rightsits officers and employees performing legal or accounting duties)).
Appears in 2 contracts
Samples: Shareholder Agreement (Genpact LTD), Shareholder Agreement (Genpact LTD)
Registration. (a) On The Company shall (i) file with the Commission on or prior to the Filing Date, the Company shall prepare and file with the Commission Deadline Date a Registration Statement covering the resale offer and sale of all the Registrable Securities not already covered by an existing Securities, and effective (ii) use its reasonable best efforts to cause such Registration Statement for an offering to be made declared effective under the Securities Act on a continuous basis pursuant or prior to Rule 415the Effectiveness Deadline Date. The Registration Statement shall be on Form S-3 S-1 or Form SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3S-1 or Form SB-2, in which case such registration shall be on another appropriate form for such purpose). ) and shall contain (except if otherwise requested or required pursuant to comments received from the Commission or other governmental or regulatory authority upon a review of such Registration Statement) a “Plan of Distribution” substantially in the form attached hereto as Annex A.
(b) The Company shall use its reasonable best efforts to cause prepare and file with the Commission such amendments and supplements to the Registration Statement to be declared effective under the Securities Act no later than the Effectiveness Date, and shall use its reasonable best efforts Prospectus used in connection therewith and take all such other actions to keep the Registration Statement continuously effective under in order to permit the Prospectus to be usable by holders for resales of Registrable Securities Act from the Effective Time until the earliest to occur of (A) the date which is the earlier of (i) five years 24 months after the Effective Closing Date, (iiB) such time as the date upon which all Registrable Securities registered under the Registration Statement have been sold thereunder, and (C) the date upon which all of the Registrable Securities have been publicly sold by the Purchaser, or cease to be Restricted Securities (iii) such time period being referred to herein as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(bc) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that (i) such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed with the Commission on or prior to its the Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereofDeadline Date, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a such Registration Statement covering the Registrable Securities is filed with but is not declared effective by the Commission on or prior to its required the Effectiveness Date, Deadline Date or (iii) after its the Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)Time, such Registration Statement ceases for any reason to be effective and available or any Prospectus thereunder ceases to the Purchaser as be usable with respect to all any Registrable Securities to which it is required to cover at any time prior to the expiration of its the Effectiveness Period, Period for more than an aggregate of 20 Trading Days 45 calendar days (which need not be consecutive), excluding (x) grace periods of not more than 15 calendar days each during which a post-effective amendment is to be filed to include in the Registration Statement material information previously not included in the Registration Statement, or to correct a misstatement of a material fact set forth in the Registration Statement, in each case due to facts or circumstances previously unknown to the Company and arising subsequent to the effectiveness of the Registration Statement or any post-effective amendment thereto, or to otherwise provide information necessary to comply with Section 10(a)(3) of the Securities Act regarding the age of financial statements included therein, provided that the Company diligently works to have any such post-effective amendment prepared, filed and declared effective by the Commission as soon as practicable and (y) grace periods of not more than five trading days each for all such events the preparation and filing with the Commission of any prospectus supplement (any such failure or breach described in clauses (i), (ii) or (iii) above being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 Trading Day 45 trading day-period is exceeded, being referred to as “Event Date”), thenthen following each such Event Date, the Company shall become obligated to pay to each Electing Holder, as liquidated damages and not as a penalty, a number of shares of Common Stock equal to 1.0% of the number of shares of Common Stock that were issued to such Electing Holder on the Closing Date and are still owned by such Electing Holder on an Ending Date, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90each 30-day period immediately following the occurrence of (pro rated on a daily pro-rata basis for periods shorter than 30 days) elapsed between the Event Date and the earlier of: (A) the date that the applicable Event is cured and (B) the date that the Effectiveness Period expires. No such payments shall increase be payable in respect of any Underlying Warrant Shares or securities that are not Registrable Securities. Liquidated damages payments payable by 0.50% per annum at the Company under this Section 2(c) shall be issued by the Company to each Electing Holder not later than seven Business Days following the end of each subsequent 9030-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash period or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date portion thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect (each such end date being an “Ending Date”). Notwithstanding anything to the initial Event Date thereof. Following contrary contained herein or in the cure of all EventsSubscription Agreement or any related document or agreement, the accrual aggregate number of liquidated damages shall cease. The shares of Common Stock issued or issuable to any holder as liquidated damages under this Section 2(c) shall be the sole and exclusive remedy not exceed 10% of the Purchaser under this Agreement for an Event. Notwithstanding aggregate number of shares of Common Stock issued to such holder on the foregoing, no liquidated damages will accrue hereunder Closing Date pursuant to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable SecuritiesSubscription Agreement.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 2 contracts
Samples: Subscription Agreement (Geopetro Resources Co), Registration Rights Agreement (Geopetro Resources Co)
Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). ) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the PurchaserHolders, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities Shares and all Warrant Shares to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) ), and (ii) or for purposes of clause (iii) the date on which such 20 twenty Trading Day period is exceeded, being referred to as “Event Date”), then, for so long in addition to any other rights available to the Holders under the Transaction Documents or under applicable law, (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.0% of the affected Registrable Securities paid by the Purchaser aggregate Investment Amount of such Holder pursuant to the Purchase Agreement from Agreement; and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser y) on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 2.0% of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement. If the Company fails to pay any liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The parties agree that the Company will not be liable for liquidated damages under this Section in respect of the Warrant Shares or the Additional Investment Right Shares. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Emerge Interactive Inc), Registration Rights Agreement (Emerge Interactive Inc)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be , on Form S-3 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent and the affected Holders (the “"Effectiveness Period”").
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities for resale, the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be declared effective as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor. Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall cause such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period.
(d) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 30 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “"Event,” " and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 30 Trading Day Day-period is exceeded, being referred to as “"Event Date”"), thenthen in addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.0% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder for Shares pursuant to the Purchase Agreement from Agreement; and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser y) on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.5% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement. The parties agree that the Company will not be liable for liquidated damages under this Section in respect of the Warrants. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 10% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy case of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(de) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a "Selling Holder Questionnaire"). The Company shall not be cutback required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under Section 2(d) to any such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 2 contracts
Samples: Registration Rights Agreement (China Biopharmaceuticals Holdings Inc), Registration Rights Agreement (China Biopharmaceuticals Holdings Inc)
Registration. (a) On or prior to the Filing Date, the Company shall prepare and (without any request, demand or notice from the Holders or any other Person) either (i) file with the Commission a “Shelf” Registration Statement covering the resale of all the Registrable Securities not already covered by an existing and effective Registration Statement on such Filing Date for an offering to be made on a continuous basis pursuant to Rule 415415 or (ii) include the Registrable Securities, covering their resale, in a Registration Statement filed by the Company with the Commission that may have included therein other shares of Common Stock. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The in accordance herewith) and shall contain substantially the “Plan of Distribution” attached hereto as Annex A. Subject to the terms of this Agreement, the Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no later than as promptly as possible after the filing thereof, but in any event prior to the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Purchasersold, or (iii) such time as all of the Registrable Securities may be sold without volume restrictions pursuant to Rule 144(k) ), as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the Holders (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such telephonically request effectiveness of a Registration Statement to as of 5:00 pm Eastern Time on a Trading Day. The Company shall immediately notify the Holders via facsimile of the effectiveness of the Registration Statement on the same Trading Day that the Company telephonically confirms effectiveness with the Commission, which shall be declared effective under the Securities Act as soon as possible butdate requested for effectiveness of the Registration Statement. The Company shall, in any event, no later than its Effectiveness by 9:30 am Eastern Time on the Trading Day after the Effective Date, and file a final Prospectus with the Commission as required by Rule 424. Failure to so notify the Holders within one Trading Day of such notification of effectiveness or failure to file a final Prospectus as aforesaid shall use its reasonable best efforts to keep such Registration Statement continuously effective be deemed an Event under the Securities Act during its entire Effectiveness PeriodSection 2(b).
(cb) If: (i) a the Registration Statement is not filed on or prior to its the Filing Date (if the Company files a the Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof), the Company shall not be deemed to have satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration in accordance with Rule 461 promulgated under the Securities Act, within five Trading Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be “reviewed,” or not subject to further review, or (iii) prior to the Effectiveness Date, the Company fails to file a pre-effective amendment and otherwise respond in writing to comments made by the Commission in respect of such Registration Statement within 10 calendar days after the receipt of comments by or notice from the Commission that such amendment is required in order for the Registration Statement to be declared effective, or (iv) the Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on by its Effectiveness Date for reasons that are beyond the reasonable control of the Company, or prior to its required (v) after the Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be remain continuously effective and available to the Purchaser as to all Registrable Securities to for which it is required to cover at any time prior be effective, or the Holders are otherwise not permitted to utilize the expiration of its Effectiveness Period, Prospectus therein to resell such Registrable Securities for more than 10 consecutive calendar days or more than an aggregate of 20 Trading Days for all such events 15 calendar days during any 12-month period (which need not be consecutive calendar days) (any such failure or breach being referred to as an “Event,” ”, and for purposes of clauses clause (i) and or (iv) the date on which such Event occurs, or for purposes of clause (ii) the date on which such five Trading Day period is exceeded, or for purposes of clause (iii) the date on which such 20 Trading Day 10 calendar day period is exceeded, or for purposes of clause (v) the date on which such 10 or 15 calendar day period, as applicable, is exceeded being referred to as “Event Date”), thenthen in addition to any other rights the Holders may have hereunder or under applicable law, for so long as on each such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay, as partial liquidated damages and not as a penalty, to the Holders, at Holders’ option, either an amount in cash, or shares of Common Stock with a VWAP, equal to the LD Amount. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 18% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holders, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 2 contracts
Samples: Registration Rights Agreement (Cord Blood America, Inc.), Registration Rights Agreement (Cord Blood America, Inc.)
Registration. (a) On or prior Subject to the Filing Dateother applicable provisions of this Agreement, the Company shall prepare file, as promptly as reasonably practicable, but no later than the applicable Filing Deadline, (i) the Prospectus Supplement, if permitted by applicable law and file with the Commission Company determines that registration through a Registration Statement Prospectus Supplement is appropriate in light of the possible termination of WKSI status as of the next determination date under Rule 405 of the 1933 Act, or (ii) a registration statement under the 1933 Act covering the resale of all Registrable Securities not already covered sale or distribution from time to time by an existing and effective Registration Statement for an offering to be made the Investors, on a delayed or continuous basis pursuant to Rule 415415 of the 1933 Act of all the Registrable Securities and shall provide for the registration of such Registrable Securities for resale by such Investors in accordance with any reasonable method of distribution elected by the Investors (such registration, a “Resale Shelf Registration”). The Registration Statement registration statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case then such registration shall be on another appropriate form for such purposepurposes) (the “Resale Shelf Registration Statement”), and if the Company is a WKSI as of the filing date and determines to file a Prospectus Supplement as provided in (a)(i) above, the Resale Shelf Registration Statement shall be an Automatic Shelf Registration Statement. The If the Resale Shelf Registration Statement is not an Automatic Shelf Registration Statement, then the Company shall use its reasonable best efforts to cause the such Resale Shelf Registration Statement to be declared effective under by the Securities Act no later than Commission as promptly as practicable after the filing thereof, but in any event prior to the Effectiveness DateDeadline.
(b) Once declared effective, and shall the Company shall, subject to the other applicable provisions of this Agreement, use its reasonable best efforts to keep cause the Resale Shelf Registration Statement to be continuously effective under the and usable until such time as there are no longer any Registrable Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) or at such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) are Freely Tradeable (the “Effectiveness Period”).
(bc) If any Shelf Registration ceases to be effective under the 1933 Act for any reason at any time during the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a)Effectiveness Period, or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare use its reasonable best efforts to promptly cause such Shelf Registration to again become effective under the 1933 Act (including obtaining the prompt withdrawal of any order suspending the effectiveness of such Shelf Registration), and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Dateshall, promptly amend such Shelf Registration in a manner reasonably expected to obtain the withdrawal of any order suspending the effectiveness of such Shelf Registration or file an additional registration statement (a “Subsequent Shelf Registration Statement covering the resale of all Registrable Securities not already covered by an existing Statement,” and effective Registration Statement such registration, a “Subsequent Shelf Registration”) for an offering to be made on a delayed or continuous basis pursuant to Rule 415, on Form S-3 (except if 415 of the Company is not then eligible 1933 Act registering the resale from time to register for resale time by the Investors of all securities that are Registrable Securities on Form S-3as of the time of such filing. If a Subsequent Shelf Registration is filed, in which case such registration shall be on another appropriate form for such purpose). The the Company shall use its reasonable best efforts to (i) cause each such Subsequent Shelf Registration Statement to be declared become effective under the Securities 1933 Act as soon promptly as possible butis reasonably practicable after such filing, but in any event, no event later than its the date that is ninety (90) days after such Subsequent Shelf Registration is filed and (ii) keep such Subsequent Shelf Registration (or another Subsequent Shelf Registration) continuously effective until the end of the Effectiveness DatePeriod. Any such Subsequent Shelf Registration shall be a registration statement on Form S-3 to the extent that the Company is eligible to use such form, and if the Company is a WKSI as of the filing date, such registration statement shall be an Automatic Shelf Registration Statement. Otherwise, such Subsequent Shelf Registration shall be on another appropriate form and shall provide for the registration of such Registrable Securities for resale by such Investors in accordance with any reasonable method of distribution elected by the Investors.
(d) The Company shall supplement and amend any Shelf Registration if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration if required by the 1933 Act or as reasonably requested by the Investors covered by such Shelf Registration.
(e) If a Person becomes an Investor of Registrable Securities after a Shelf Registration becomes effective under the 1933 Act, the Company shall, as promptly as is reasonably practicable following delivery of written notice to the Company of such Person becoming an Investor and requesting for its name to be included as a selling securityholder in the prospectus related to the Shelf Registration:
(i) if required and permitted by applicable law, file with the Commission a supplement to the related prospectus or a post-effective amendment to the Shelf Registration so that such Investor is named as a selling securityholder in the Shelf Registration and the related prospectus in such a manner as to permit such Investor to deliver a prospectus to purchasers of the Registrable Securities in accordance with applicable law;
(ii) if, pursuant to Section 2(e)(i), the Company shall have filed a post-effective amendment to the Shelf Registration that is not automatically effective, use its reasonable best efforts to keep cause such Registration Statement continuously post-effective amendment to become effective under the Securities 1933 Act during its entire Effectiveness Period.
as promptly as is reasonably practicable, but in any event by the date that is ninety (c90) If: (i) a Registration Statement days after the date such post-effective amendment is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a2(e)(i) hereof, the Company shall not to be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or filed; and
(iii) notify such Investor as promptly as is reasonably practicable after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for effectiveness under the 1933 Act of any reason to be post-effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser amendment filed pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the NoteSection 2(e)(i), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 2 contracts
Samples: Registration Rights Agreement (Act III Holdings LLC), Registration Rights Agreement (BJs RESTAURANTS INC)
Registration. (a) On or prior the terms and subject to the Filing Dateconditions of this Agreement, subject to Section 4(a) below, the Company shall prepare and file with use reasonable best efforts to file, no later than ninety (90) days following the Commission Effective Date, a Registration Statement registration statement under the Securities Act covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering that the Investor requests to be made registered along with the identity of any Permitted Holders (to the extent then known) who seek to sell Registrable Securities, along with any other shares of Common Stock the Company determines to include in such registration on behalf of itself or another selling shareholder, relating to the offer and sale of such securities from time to time in accordance with the methods of distribution (which shall include the ability to conduct an underwritten offering and which shall also include sales by a continuous basis Permitted Holder indicated in writing by the Investor in the notice delivered pursuant to this Section 2(a) or in an amendment required pursuant to Section 3(a)(viii)) set forth in the registration statement and Rule 415415 under the Securities Act. The Registration Statement registration statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its commercially reasonable best efforts to cause the Registration Statement registration statement to be declared effective or otherwise to become effective under the Securities Act no later than the Effectiveness Dateas soon as reasonably practicable, and shall use its commercially reasonable best efforts to keep the Registration Statement registration statement continuously effective under the Securities Act until the date which is the earlier earliest of (i) five years after the Effective Datedate on which all Registrable Securities included in such registration statement have been sold, (ii) such time as all of the date when there no longer remain any Registrable Securities have been publicly sold by the Purchaser, or all Registrable Securities are Freely Tradeable or (iii) such time as all three (3) years after the date of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”)effectiveness.
(b) If for any reason the Commission does not permit all of the Investor intends to distribute Registrable Securities to be included by means of an underwriting, (i) the Investor shall promptly so advise the Company in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then writing and (ii) the Company shall prepare have the right to appoint the book-running, managing and file as soon as possible after other underwriter(s), which such underwriters shall be reasonably acceptable to the date on which the Commission Investor; provided that in no event shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible or any of its Affiliates have any obligation to register for resale facilitate or participate in more than two (2) underwritten offerings requested by or on behalf of the Registrable Securities on Form S-3Investor. In any such underwritten offering, in which case such registration shall be on another appropriate form for such purpose). The Company shall the Investor will use its reasonable best efforts to cause each avoid allowing an individual purchaser to purchase shares in such Registration Statement offering from shares being sold on behalf of the Investor that would constitute more than 5% of the shares of Common Stock outstanding as of such of date; provided that the foregoing limitation shall not apply to be declared effective under sales by a financial or lending institution holding shares of Common Stock pledged by the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness PeriodInvestor.
(c) If: The Company shall cause (i) a Registration Statement is not filed on or prior to its Filing Date the registration statement (if as of the Company files a Registration Statement without affording effective date of the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)registration statement), any amendment thereof (as of the effective date thereof) or supplement thereto (ii) a Registration Statement is not declared effective by the Commission on or prior to as of its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(cdate), such Registration Statement ceases for (A) to comply in all material respects with the applicable requirements of the Securities Act and (B) not to contain any reason untrue statement of a material fact or omit to state a material fact required to be effective and available stated therein or necessary in order to make the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Periodstatements therein not misleading, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) any related prospectus, preliminary prospectus or for purposes free writing prospectus and any amendment thereof or supplement thereto, as of clause its date, (iiiA) to comply in all material respects with the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price applicable requirements of the affected Registrable Securities paid by Act and (B) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been curedstatements therein, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence in light of the Event Date and circumstances under which they were made, not misleading; provided, however the Company shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in have no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash obligations or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than liabilities with respect to any information furnished to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy Company by or on behalf of the Purchaser under this Agreement Investor expressly for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiesinclusion therein.
(d) All Registration Statements under this Section 2 Expenses shall be borne by the Company. All Selling Expenses shall be borne by the Investor. The Investor shall promptly reimburse the Company for any Selling Expenses incurred by the Company upon notice (and in any event within five (5) Business Days of such notice).
(e) The Company will submit any required additional shares notification to Nasdaq that may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements required as a result of such piggy-back rightsany transaction contemplated by this Agreement.
Appears in 2 contracts
Samples: Settlement Agreement (Trafelet Remy W), Settlement Agreement (Alico Inc)
Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). ) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five two years after from the Effective Closing Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) If: Notwithstanding anything in this Agreement to the contrary, if after any registration statement to which the rights hereunder apply becomes effective (and prior to completion of any sales thereunder), the Board of Directors determines in good faith that the failure of the Company to (i) suspend sales of stock under the registration statement or (ii) amend or supplement the registration statement, would have a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment material adverse effect on the same as required by Section 3(a) hereofCompany, the Company shall not be deemed to have satisfied this clause (i))so notify each Holder participating in such registration and each Holder shall suspend any further sales under such registration statement until the Company advises the Holder that the registration statement has been amended or that conditions no longer exist which would require such suspension, or (ii) a Registration Statement is not declared effective by provided that the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (Company may impose any such failure or breach being referred to as an “Event,” suspension for no more than 20 days and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum no more than 2 times during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day any twelve month period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under Section 2(c) to any such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rights.fully completed Selling Holder Questionnaire at least six Trading Days prior to the Filing Date
Appears in 1 contract
Samples: Registration Rights Agreement (Rainmaker Systems Inc)
Registration. (a) In connection with the Merger, on or prior to the Filing Date contemplated in clause (a) of the definition of “Filing Date,” the Company shall prepare and file a Registration Statement on Form S-4 (or such other appropriate form for such purpose) registering the issuance of all of the Shares by the Company to the holders thereof upon the effective time of the Merger. The Company shall cause such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date.
(b) On or prior to the Filing Date contemplated in clause (b) of the definition of “Filing Date, ,” the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 S-1 (or on such other form appropriate for such purpose, including Form F-1 in the event that the Commission shall require such Registration Statement to be on such Form). Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Company is not then eligible to register for resale Commission upon a review of such Registration Statement) the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during until the date which is the earliest of (i) five years after its entire Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders, or (iv) if the Registration Statement contemplated by Section 2(a) has been declared effective and the Share exchange contemplated by Section 4.1(d) of the Purchase Agreement shall have occurred and the resale by one or more Holders of the resulting Shares shall be subject to the limitations imposed under Rule 145, such time as all Shares then beneficially owned by such Holders can be resold in full without such Rule 145 limitations (the “Effectiveness Period”). By 5:00 p.m. (New York City time) on the Effective Date, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule). If the Registration Statement contemplated by Section 2(a) has been declared effective and the Share exchange contemplated by Section 4.1(d) of the Purchase Agreement shall have occurred, then the Company only is required to name as selling stockholders in a Registration Statement under this Section 2(b) those Holders who will be subject to Rule 145 limitations. Notwithstanding anything to the contrary set forth in this Agreement, in the event that (x) the Registration Statement contemplated by Section 2(a) has been declared effective, (y) the Share exchange contemplated by Section 4.1(d) of the Purchase Agreement shall have occurred, and (z) the resale by none of the Holders of the resulting Shares shall be subject to the limitations imposed under Rule 145, then the Company shall not be required to cause the Registration Statement filed pursuant to this Section 2(b) to be declared effective.
(c) Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities for resale (or Form F-3 if then applicable to the Company), if the Company would then still be required to have a Registration Statement under Section 2(b) effective, then the Company shall file a Registration Statement on Form S-3 (or Form F-3 as applicable) prior to the Filing Date contemplated in clause (c) of the definition of “Filing Date,” covering the Registrable Securities (or a post-effective amendment on Form S-3 (or Form F-3 as applicable) to the then effective Registration Statement). Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall cause such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period. By 5:00 p.m. (New York City time) on the Effective Date of such Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(d) If: (i) a Registration Statement filed pursuant to Section 2(a) or Section 2(b) or Section 2(c) is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement filed pursuant to Section 2(a) or Section 2(b) or Section 2(c) is not declared effective by the Commission on or prior to its required Effectiveness DateDate (but not in the case of the Registration Statements under Section 2(b) and Section 2(c) if the Registration Statement under Section 2(b) is not required to be declared effective in accordance with the last sentence of Section 2(b)), or if by the Business Day immediately following the Effective Date the Company shall not have filed a “final” prospectus for the Registration Statement with the Commission under Rule 424(b) in accordance with Section 2(b) or Section 2(c) herein, as the case may be (whether or not such a prospectus is technically required by such Rule), or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than therefor, a Suspension Event in compliance with Section 6(c), such Registration Statement filed pursuant to Section 2(b) or Section 2(c) ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 30 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 30 Trading Day Day-period is exceeded, being referred to as “Event Date”), thenthen in addition to any other rights the Holders may have hereunder or under applicable law: for each calendar month from the applicable Event Date the Company shall pay to each Holder an amount in cash, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.0% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The parties agree that the Company will not be liable for liquidated damages under this Section in respect of the Warrants. In no event will the Company be liable for damages in excess of 1.0% of the aggregate Investment Amount of the Holders in any 30-day period. The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy case of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, first Event Date; provided, that the number maximum aggregate liquidated damages payable to a Holder under this Section 2(d), when aggregated with any liquidated damages payable pursuant to Section 4.12 of Registrable Securities the Purchase Agreement, shall not exceed ten percent (10%) of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement.
(e) Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback required to include the Registrable Securities of a Holder in a Registration Statement filed pursuant to Section 2(b) or Section 2(c) and shall not be required to pay any liquidated or other damages under any Section 2(d) as to such Registration Statements as to any Holder in connection therewith who fails to furnish to the Company a result of such piggy-back rightsfully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Samples: Registration Rights Agreement (China Security & Surveillance Technology, Inc.)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be , on Form S-3 S-1 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 S-1 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 Trading Day Day-period is exceeded, being referred to as “Event Date”), thenthen in addition to any other rights the Holders may have hereunder or under applicable law: on each such Event Date, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.5% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement. The parties agree that the Company will not be liable for liquidated damages under this Section in respect of the Warrants. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven calendar days after the date payable, the Company will pay interest thereon at a rate of 10% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy case of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(d) Registration Statements under this Section 2 may contain shares other than Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities in accordance with for resale, the requirements of piggy-back rights granted under predecessor agreements, provided, that Company shall file a registration statement on Form S-3 covering the number of Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be declared effective as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor. Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall cause such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period.
(e) Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under Section 2(c) to any such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Registration. (a) On or prior to the applicable Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be , on Form S-3 S-1 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement, other than as to the characterization of any Holder as an underwriter, which shall not occur without such Holder’s consent) the "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the such Registration Statement to be declared effective under the Securities Act no later than the Effectiveness Dateas soon as possible, and shall use its reasonable best efforts to keep the Registration Statement continuously effective during the entire Effectiveness Period. The initial Registration Statement shall cover all of the Note Shares. By 5:00 p.m. (New York City time) on the Business Day immediately following the Effective Date of such Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may final prospectus to be sold used in connection with sales pursuant to Rule 144(k) such Registration Statement (the “Effectiveness Period”whether or not such filing is technically required under such Rule).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are ) cannot be so included in a Registration Statement filed under this Agreementdue to Commission Comments, then the Company shall prepare and file by the applicable Filing Date for such Registration Statement(s), such number of additional Registration Statements as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but necessary in any event by its Filing Date, an additional Registration Statement covering the resale of order to ensure that all Registrable Securities not already are covered by an existing and effective Registration Statement. Accordingly, if for example, an initial Registration Statement is filed under this Section 2(b) to register Registrable Securities removed from a Registration Statement filed under Section 2(a) due to Commission Comments and Commission Comments again require shares to be removed from such newly filed Registration Statement under this Section 2(b), then the Company will prepare and file additional Registration Statement(s) until such time as all such required shares are covered by effective Registration Statements. Any Registration Statements to be filed under this Section shall be for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 S-1 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement, other than as to the characterization of any Holder as an underwriter, which shall not occur without such Holder’s consent) the "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Datepossible, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period. By 5:00 p.m. (New York City time) on the Business Day immediately following the Effective Date of such Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(c) Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities for resale, the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be filed by the Filing Date for such Registration Statement and declared effective as soon as possible thereafter. Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall use its best efforts to keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period. By 5:00 p.m. (New York City time) on the Business Day immediately following the Effective Date of such Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(d) If: (i) a Registration Statement is not filed on or prior to its Filing Date covering the Registrable Securities required under this Agreement to be included therein (if the Company files a Registration Statement without affording the Purchaser Holder the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) if by the Business Day immediately following the Effective Date the Company shall not have filed a “final” prospectus for the Registration Statement is not declared effective by with the Commission on under Rule 424(b) in accordance with Section 2(a), 2(b), or prior to its 2(c) herein, as the case may be (whether or not such a prospectus is technically required Effectiveness Dateby such Rule), or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefor, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holder as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 30 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 30 Trading Day Day-period is exceeded, being referred to as “Event Date”), then, for so long as then in addition to any other rights the Holder may have hereunder or under applicable law: on such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is curedcured the Company shall pay to the Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate Investment Amount paid by the Holder pursuant to the Purchase Agreement; provided, however, that, for purposes of clauses (i) or (ii) above, and in addition to the above liquidated damages, upon such Event, the Company shall immediately pay to the Holder a cash payment of $500,000 as partial liquidated damages and not as a penalty (the “Initial Payment”). In no event will the Company be liable for liquidated damages under this section in excess of 1.0% of the aggregate Investment Amount of the Holder in any 30-day period (other than the initial 30-day period beginning on the Event Date) and the maximum aggregate liquidated damages payable to the Holder under this section shall be fifteen percent (15%) of the aggregate Investment Amount paid by the Holder pursuant to the Purchase Agreement, inclusive of the Initial Payment (the “Cap”). The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event, except in the case of the first Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall ceaseDate. The Company shall not be liable for liquidated damages under this Agreement as to any Registrable Securities which are not permitted by the Commission to be included in a Registration Statement due solely to Commission Comments from the time that it is determined that such Registrable Securities are not permitted to be registered solely due to Commission Comments until such time as the provisions of this Agreement as to the next applicable Registration Statement required to be filed hereunder are triggered, in which case the provisions of this Section 2(c2(d) shall be once again apply, if applicable. In such case, the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder shall be calculated to only apply to the Purchaser percentage of Registrable Securities which are permitted in accordance with respect Commission Comments to the Primary Shares or Underlying Shares that are no longer Registrable Securitiesbe included in such Registration Statement.
(de) Registration Statements under The Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under any such Registration Statements as Section 2(d) to a result of such piggy-back rightsHolder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Samples: Registration Rights Agreement (Organic to Go Food CORP)
Registration. (a) On or prior to The Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing DateDeadline”), the Company shall prepare and file with the Commission SEC a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Such 29 Registration Statement shall be on Form S-3 F-3 (except or, if the Company Form F-3 is not then eligible available to register the Company, on such form of Registration Statement as is then available to effect a registration for resale of the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purposeSecurities). The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as soon promptly as possible but, in any event, no later than its Effectiveness Dateafter the filing thereof, and shall use its reasonable best efforts respond to any comments received from the SEC within ten (10) Business Days, and (ii) to keep such Registration Statement continuously effective under the Securities Act during until such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its entire Effectiveness best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on XXXXX, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) If: (i) a Registration Statement The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereofdeemed an underwriter, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for relieved of any reason to be effective and available to the Purchaser as to all Registrable Securities to which obligations it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitieshereunder.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement or Registration Statements (as necessary) on Form S-3 covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The In the event that Form S-3 is unavailable for such a registration, the Company shall use such other form as is available for such a registration. Such Registration Statement shall be on Form S-3 contain (except if otherwise required pursuant to written comments received from the Company is not then eligible to register for resale Commission upon a review of such Registration Statement) the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five (5) years after the its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent and the affected Holders (the “Effectiveness Period”"EFFECTIVENESS PERIOD").
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another an appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and and/or available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, the Company agrees to use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act for an aggregate additional period of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes time, beginning on the last day of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant equal to the Purchase Agreement from aggregate amount of days that passed before the Company cured any and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but all events referred to in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes clauses (as defined in the Notei), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such dateii) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(cand (iii) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiesherein.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Agreement as Annex B (a "SELLING HOLDER QUESTIONNAIRE"). The Company shall not be required to include the Registrable Securities of a Holder in accordance with a Registration Statement who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
(e) In the event that Form S-3 is not available for any registration of piggy-back rights granted under predecessor agreementsRegistrable Securities hereunder, the Company shall (i) register the sale of the Registrable Securities on another appropriate form and (ii) undertake to register the Registrable Securities on Form S-3 as soon as such form is available; provided, however, that the number Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rightshas been declared effective by the Commission.
Appears in 1 contract
Samples: Registration Rights Agreement (Jmar Technologies Inc)
Registration. (a) On or prior Subject to the Filing Dateprovisions of Section 2(b) below, the Company shall prepare and will file with the Commission a registration statement on Form S-3 (the "Issuance Registration Statement covering Statement") under Rule 415 under the resale Securities Act relating to the issuance to the Investors of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering Common Shares upon redemption of Common Units, such filing to be made on a continuous basis or within five business days after the first anniversary of the date hereof (the "Filing Date"); provided, however, that, notwithstanding the foregoing, the Filing Date may be such other date as may be required under applicable provisions of the Securities Act or by the Commission pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if its interpretations of the Company is not then eligible to register for resale Securities Act, the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose)Exchange Act and other applicable federal securities laws. The Company shall use its reasonable best efforts to cause the Issuance Registration Statement to be declared effective under by the Securities Act no later than Commission for all Registrable Shares covered thereby as soon as practicable thereafter. In the Effectiveness Date, and shall use its reasonable best efforts event the Company is unable to keep the cause such Issuance Registration Statement continuously to be declared effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or Commission within ninety (iii90) such time as all of days following the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this AgreementFiling Date, then the rights of the Holders set forth in Section 2(b) below shall apply to the Registrable Shares. Notwithstanding the availability of rights under Section 2(b), the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering continue to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such the Issuance Registration Statement to be declared effective under by the Securities Act Commission until such time as soon as possible butthe Company shall have filed and had declared effective a Shelf Registration Statement in accordance with Section 2(b). If the Issuance Registration Statement is declared effective by the Commission, in any event, no later than its Effectiveness Date, and shall the Company agrees to use its reasonable best efforts to keep such Issuance Registration Statement continuously effective until all Holders have tendered for redemption their Common Units.
(b) In the event that Form S-3 is unavailable at the Filing Date as a form for an Issuance Registration Statement, or Form S-3 becomes unavailable as a form for an Issuance Registration Statement following the Filing Date, or the Company is unable, for any reason, to cause an Issuance Registration Statement to be declared effective by the Commission within ninety (90) days following the Filing Date, then within ten (10) days after the occurrence of any such event, the Company shall file a registration statement on Form S-3 or another appropriate form (a "Shelf Registration Statement") under Rule 415 under the Securities Act during relating to the resale of all Registrable Shares. The Company agrees to use its entire Effectiveness Periodreasonable best efforts to cause such Shelf Registration Statement to be declared effective by the Commission and to keep such Shelf Registration Statement effective until the date that is the earliest of (i) two (2) years following the date on which the last Holder tendered for redemption any Common Units, (b) the date on which all Registrable Shares have been disposed of by Holders, and (c) the date on which it is no longer necessary to keep the Shelf Registration Statement effective because the Registrable Shares may be freely sold without limitation on volume or manner of sale pursuant to Rule 144. After the Company has filed the Shelf Registration Statement and it is declared effective, any obligation of the Company to file an Issuance Registration Statement pursuant to Section 2(a) above shall be suspended for so long as the Shelf Registration Statement remains effective.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if Notwithstanding the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereofforegoing, the Company shall not be deemed have the right (the "Suspension Right") to have satisfied this clause defer any such filing (i)), or (ii) a suspend sales under any filed Registration Statement is or defer the updating of any filed Registration Statement and suspend sales thereunder) for a period of not declared effective more than 105 days during any one-year period ending on December 31, if the Company shall furnish to the Holders a certificate signed by an executive officer or any director of the Commission on or prior Company stating that, in the good faith judgment of the Company, it would be detrimental to the Company and its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), stockholders to file such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover or amendment thereto at any such time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (icontinue sales under a filed Registration Statement) and (ii) or for purposes therefore the Company has elected to defer the filing of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as Statement (or suspend sales under a result of such piggy-back rightsfiled Registration Statement).
Appears in 1 contract
Registration. (a) On or prior to the Filing Date, Date the Company shall prepare and file with the Commission a "shelf" Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415; provided, however, that the Company shall not be required to register any Registrable Securities pursuant to this Section 2(a) that are eligible for sale pursuant to Rule 144 of the Securities Act. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register or on another form appropriate for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purposein accordance herewith). The Company shall (i) not permit any securities other than the Registrable Securities to be included in the Registration Statement and (ii) use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no later than (including filing with the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective Commission a request for acceleration of effectiveness in accordance with Rule 461 promulgated under the Securities Act until within five (5) Business Days of the date which that the Company is the earlier of notified (iorally or in writing, whichever is earlier) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in that a Registration Statement filed under this Agreement, then will not be "reviewed," or not be subject to further review) within sixty (60) days from the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire until such date as is the earlier of (x) the date when all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter, addressed to the Company's transfer agent to such effect (the "Effectiveness Period"). If an additional Registration Statement is required, for any reason, to be filed because the actual number of shares of Common Shares and Option Shares exceeds the number of shares of Common Stock initially registered in respect of the Common Shares and the Option Shares based upon the computation on the Closing Date, the Company shall have 20 Business Days to file such additional Registration Statement, and the Company shall use its best efforts to cause such additional Registration Statement to be declared effective by the Commission as soon as possible, but in no event later than 30 days after filing.
(b) If (i) there is material non-public information regarding the Company which the Company's Board of Directors (the "Board") reasonably determines not to be in the Company's best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company's best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 90 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 2(b) for more than 120 days in the aggregate during any 12 month period (each, a "Blackout Period").
(c) If: In connection with the Company's registration obligations under this Section 2, the Company shall
(i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review Prepare and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by file with the Commission on or prior to its required Effectiveness the Filing Date, a Registration Statement on Form S-3 (or on another form appropriate for such registration in accordance herewith) in accordance with the method or methods of distribution thereof as specified by the Holders (except if otherwise directed by the Holders), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than five (5) Business Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated therein by reference), the Company shall (x) furnish to the Holders and any Special Counsel, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Holders and such Special Counsel, and (y) the Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or any Special Counsel shall reasonably object in writing within three (3) Business Days of their receipt thereof;
(ii) Prepare and file with the Commission such amendments, including post-effective amendments, to the Registration Statement as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities;
(iii) after its Effective Date, without regard for cause the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason related Prospectus to be effective amended or supplemented by any required Prospectus supplement, and available as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Purchaser as to Securities Act;
(iv) comply in all Registrable Securities to which it is required to cover at any time prior to material respects with the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price provisions of the affected Registrable Securities paid by Act and the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than Exchange Act with respect to the initial Event Date thereof. Following the cure disposition of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities covered by the Registration Statement during the applicable period in accordance with the requirements intended methods of piggy-back rights granted disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented; and
(v) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and any Special Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under predecessor agreementsthe securities or Blue Sky laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the number of Registrable Securities Company shall not be cutback under required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action that would subject it to general service of process in any such Registration Statements as a result of jurisdiction where it is not then so subject or subject the Company to any material tax in any such piggy-back rightsjurisdiction where it is not then so subject.
Appears in 1 contract
Samples: Registration Rights Agreement (Homegold Financial Inc)
Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be , on Form S-3 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earliest of (i) five years after its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent and the affected Holders (the "Effectiveness Period"). By 9:00 a.m. (New York City time) on the Business Day following the Effective Date, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(b) Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities for resale, the Company shall file a Registration Statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be filed by the Filing Date for such Registration Statement and declared effective as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor. Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall cause such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period. By 9:00 a.m. (New York City time) on the Business Day following the Effective Date of such Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording furnishing the Purchaser the opportunity Holders with a copy of such document pursuant to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness DateDate or if by the Business Day immediately following the Effective Date the Company shall not have filed a “final” prospectus for the Registration Statement with the Commission under Rule 424(b) (whether or not such a prospectus is actually required by such Rule), or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 30 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “"Event,” " and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 30 Trading Day Day-period is exceeded, being referred to as “"Event Date”"), thenthen in addition to any other rights the Holders may have hereunder or under applicable law: on each such Event Date, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement; provided, however, that the total amount of partial liquidated damages payable by the Company pursuant to all Events under this Section shall be capped at an aggregate of 10% of the aggregate Investment Amount paid by the Investors under the Purchase Agreement. The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event, except in the case of the first Event other than with respect to Date. In no event will the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The Company be liable for liquidated damages under this Section 2(c) shall be the sole and exclusive remedy Agreement in excess of 1.0% of the Purchaser aggregate Investment Amount of the Investors in any 30-day period. The Company will not be liable for liquidated damages under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to any Placement Agent Warrants or any shares of Common Stock issuable upon exercise of the Primary Shares or Underlying Shares that are no longer Registrable SecuritiesPlacement Agent Warrants.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under Section 2(c) to any such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Registration. The Company shall either have the Registrable Securities registered under (aI) On the Company's currently pending Form SB-2 Registration Statement or prior (ii) under a separate Registration Statement to be filed by the Company's counsel at the Company's sole cost and expense. In either event, an amendment to the Filing Date, the Company shall prepare and file with the Commission a Form SB-2 Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on or a continuous basis pursuant to Rule 415. The new Registration Statement shall be filed by the Company's counsel on Form S-3 (except if or before the date required under Section 2 of the Registration Rights Agreement dated as of this date between the Company is not then eligible to register for resale and Terra Healthy Living. In the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause event the Registration Statement to be declared effective under the Securities Act no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if before the foregoing date or the Company files a fails to use its reasonable best efforts to have the Registration Statement without affording declared effective as promptly as feasible, then in such event the Purchaser Company shall pay the opportunity Investor $100 per day until the Registration Statement is filed. The Investor is also granted additional Piggy-back registration rights, subject to review the rights of other holders of the Company's securities entitled to registration rights, on any other Registration Statement (other than Form S-8, Form S-4 and comment on any similar or successor forms) filings made by the same as required by Section 3(aCompany. If at any time the number of shares of Common Stock into which the Warrant(s) hereofmay be converted exceeds the aggregate number of shares of Common Stock then registered, the Company shall not be deemed to have satisfied this clause shall, within ten (10) business days after receipt of written notice from any Investor, either (i))) amend the Registration Statement filed by the Company pursuant to the preceding sentence, if such Registration Statement has not been declared effective by the SEC at that time, to register all shares of Common Stock into which the Warrant(s) may be converted, or (ii) a if such Registration Statement is not has been declared effective by the Commission on or prior to its required Effectiveness DateSEC at that time, or (iii) after its Effective Date, without regard for file with the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such SEC an additional Registration Statement ceases for any reason on Form SB- 2 to be effective and available to register the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration shares of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on Common Stock into which the Event has been curedWarrants may be converted that exceed the aggregate number of shares of Common Stock already registered. For so long as The above damages shall continue until the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date obligation is fulfilled and shall increase by 0.50% per annum at the end of be paid within 5 business days after each subsequent 90-30 day period, but in no event or portion thereof, until the Registration Statement is filed. Failure of the Company to make payment within said 5 business days shall such rate exceed 1.00% per annumbe considered a default. The Company acknowledges that its failure to file with the SEC, said amendment to the Form SB-2 Registration Statement of a new Registration Statement no later than February 15, 1999, will cause the Initial Investor to suffer damages in an amount that will be difficult to ascertain. Accordingly, the parties agree that it is appropriate to include in this Agreement a provision for liquidated damages. The parties acknowledge and agree that the liquidated damages provision set forth in this section represents the parties' good faith effort to quantify such damages and, as such, agree that the form and amount of such liquidated damages are reasonable and will not constitute a penalty. The payment of liquidated damages shall be due not relieve the Company from its obligations to register the Common Stock and payable in cash or through deliver the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages Common Stock pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding and the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable SecuritiesWarrant.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Samples: Registration Rights Agreement (Vitafort International Corp)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an a selling stockholder resale offering to be made on a continuous basis pursuant to Rule 415. The Each Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purposein accordance herewith). The Company shall cause each Registration Statement to become effective and remain effective as provided herein. The Company shall use its commercially reasonable best efforts to cause the each Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the Effectiveness Date, and . The Company shall use its reasonable best commercial efforts to keep the each Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) five years after the Effective Date, all Registrable Securities covered by such Registration Statement have been sold or (ii) such time as all of the Registrable Securities have been publicly sold covered by the Purchaser, or (iii) such time as all of the Registrable Securities Registration Statement may be sold immediately without registration under the Securities Act and without volume restrictions pursuant to Rule 144(k) ), as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (the each, an “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the a Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing filling may be made, but but, in the event that the Commission does not so specify, no later than 180 days after the immediately prior Registration Statement has been declared effective by the Commission (it being understood that this Section 2(b) is applicable to any event by its Filing Datesuch subsequent Registration Statement), an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best commercial efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) If at any time during the Effectiveness Period, less than 100% of the then Registrable Securities are then registered in a Registration Statement(s), then the Company shall file, as soon as reasonably practicable, but in any case prior to the applicable Filing Date, subject to any restrictions imposed by Rule 415, an additional Registration Statement covering the resale by the Holders of not less than 100% of the number of Registrable Securities.
(d) If: (i) a the Registration Statement is not filed on or prior to its the Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or Date; (ii) a the Registration Statement is not declared effective by the Commission on or prior to its required by the Effectiveness Date, or ; (iii) after its Effective Datethe Registration Statement is filed with and declared effective by the Commission, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser (by suspension or otherwise) as to all any Registrable Securities to which it is required to cover relate at any time prior to the expiration of its the Effectiveness Period, Period (without being succeeded immediately by an additional registration statement filed and declared effective) for an aggregate a period of 20 time which shall exceed 30 Trading Days in the aggregate per year or more than 20 consecutive Trading Days (defined as a period of 365 days commencing on the date the Registration Statement is declared effective); or (iv) the Common Stock is not listed or quoted, or is suspended from trading on any Trading Market for all a period of three (3) consecutive Trading Days (provided the Company shall not have been able to cure such events trading suspension within 30 days of the notice thereof or list the Common Stock on another Trading Market); (any such failure or breach being referred to as an “Event,” and for purposes of clauses clause (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date which such 30 day or 20 consecutive day period (as the case may be) is exceeded, or for purposes of clause (iv) the date on which such 20 three (3) Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) then until the applicable Event is cured. The , the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to 1.0% for each thirty (30) day period (prorated for partial periods) on a daily basis of the original principal amount of the Note; provided that, the maximum aggregate amount of liquidated damages that may be charged to the Company pursuant to this Section 2(b) shall not exceed 10% of the terms hereof initial Principal Amount of the Note. While such Event continues, such liquidated damages shall apply be paid not less often than each thirty (30) days. Any unpaid liquidated damages as of the date when an Event has been cured by the Company shall be paid within three (3) days following the date on which such Event has been cured by the Company.
(e) Notwithstanding anything to the contrary contained in this Agreement, in the event the Commission determines any Registration Statement filed pursuant to this Agreement (i) constitutes a primary offering of securities by the Company or (ii) requires any Holder to be named as an underwriter and such Holder does not consent to being so named as an underwriter in such Registration Statement, the Company may reduce, on a pro rata basis for basis, the total number of Registrable Securities to be registered on behalf of each such Holder, and the failure to include such Registratble Securities in any portion Registration Statement shall not cause the Company to be required to pay a penalty, financial or otherwise, as described in this Agreement, including, without limitation, any liquidated damages as set forth in Section 2(d) hereof. In the even of any such reduction in Registrable Securities, the Company shall file a Registration Statement at such time as the Commission shall indicate as being the first date or time that such filing may be made, but no later than 180 days after the immediately prior Registration Statement has been declared effective by the Commission, until such time as (i) all Registrable Securities have been registered pursuant to an effective Registration Statement, (ii) the Registrable Securities may be resold without restriction (including volume limitations) pursuant to Rule 144(k) of the Securities Act or (iii) the Holder agrees to be named as an underwriter in any such Registration Statement.
(f) Within three business days of the Effectiveness Date, the Company shall cause its counsel to issue an opinion substantially in the form attached hereto as Exhibit A, to the transfer agent stating that the shares are subject to an effective registration statement and can be reissued free of restrictive legend upon notice of a month prior to sale by the cure Purchaser and confirmation by the Purchaser that it has complied with the prospectus delivery requirements, provided that the Company has not advised the transfer agent orally or in writing that the opinion has been withdrawn. Copies of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under opinion required by this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder delivered to the Purchaser with respect to within the Primary Shares or Underlying Shares that are no longer Registrable Securitiestime frame set forth above.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Samples: Registration Rights Agreement (ProLink Holdings Corp.)
Registration. (ai) On or prior to the Filing Date, the The Company shall prepare and file or cause to be prepared and filed with the Commission Commission, no later than April 30, 2024 (the “Filing Deadline”), a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement registration statement for an offering to be made on a continuous basis pursuant to Rule 415415 of the Securities Act registering the resale from time to time by the Holder of all Registrable Securities held by the Holder (the “Resale Registration Statement”). The Resale Registration Statement shall be on Form S-3 (except F-3 or, if the Company use of Form F-3 is not then eligible available to register the Company, on Form F-1 or such other appropriate form permitting registration of such Registrable Securities for resale by the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose)Holder. The Company shall use its reasonable best efforts to cause the Resale Registration Statement to be declared effective under as soon as possible after filing, but in no event shall the Securities Act no Resale Registration Statement be declared effective later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after sixty (60) days following the Effective Date, Filing Deadline or (ii) ten (10) Business Days after the Commission notifies the Company that it will not review the Resale Shelf Registration Statement, if applicable (the “Effectiveness Deadline”); provided, that the Effectiveness Deadline shall be extended by no more than ninety (90) days after the Filing Deadline if the Registration Statement is reviewed by, and receives comments from, the Commission. Once effective, the Company shall keep the Resale Registration Statement continuously effective and supplemented and amended to the extent necessary to ensure that such time Registration Statement is available or, if not available, to ensure that another registration statement is available, under the Securities Act at all times until such date as all of the Registrable Securities covered by the Resale Registration Statement have been publicly sold disposed of in accordance with the intended method(s) of distribution set forth in such Registration Statement or such securities have been withdrawn (the “Effectiveness Period”). The Resale Registration Statement shall contain a prospectus in such form as to permit the Holder to sell such Registrable Securities pursuant to Rule 415 under the Securities Act (or any successor or similar provision adopted by the PurchaserCommission then in effect) at any time beginning on the effective date for such Registration Statement, or (iii) and shall provide that such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (any method or combination of methods legally available to, and requested by, the “Effectiveness Period”)Holder.
(bii) If for The Company shall notify the Holder in writing of the effectiveness of the Resale Registration Statement as soon as practicable, and in any reason event within one (1) Business Day after the Commission does not permit Resale Registration Statement becomes effective, and shall furnish to Holder, without charge, such number of copies of the Resale Registration Statement (including any amendments, supplements and exhibits), the prospectus contained therein (including each preliminary prospectus and all related amendments and supplements) and any documents incorporated by reference in the Resale Shelf Registration Statement or such other documents as the Holder may reasonably request in order to facilitate the sale of the Registrable Securities to be included in the manner described in the Resale Registration Statement.
(iii) Subject to the provisions of Section 4(a)(i) above, the Company shall promptly prepare and file with the Commission from time to time such amendments and supplements to (or replacements of) the Resale Registration Statement and prospectus used in connection therewith as may be necessary to keep the Resale Registration Statement (or replacements thereof) effective and to comply with the provisions of the Securities Act with respect to the disposition of all the Registrable Securities during the Effectiveness Period. If any Resale Registration Statement filed pursuant to Section 2(a)4(a)(i) is filed on Form F-3 and thereafter the Company becomes ineligible to use such registration statement for secondary sales, or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare promptly notify the Holder of such ineligibility and shall file a shelf registration on Form F-1 or other appropriate form as soon promptly as possible practicable (but no later than 14 calendar days after becoming ineligible to use Form F-3) to replace the date on which Resale Registration Statement and use its best efforts to have the Commission such replacement Resale Registration Statement declared effective as promptly as practicable and shall indicate as being cause such replacement Resale Registration Statement to remain effective, and to be supplemented and amended to the first date or time extent necessary to ensure that such filing may be made, but in any event by its Filing Date, an additional Resale Shelf Registration Statement covering is available or, if not available, that another Resale Registration Statement is available, for the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on held by the Holder until all such Registrable Securities have been sold; provided, however, that at any time the Company once again becomes eligible to use Form S-3F-3, in which case such registration shall be on another appropriate form for such purpose). The the Company shall use its reasonable best efforts to cause each such replacement Resale Registration Statement to be declared effective under amended, or shall file a new replacement Resale Registration Statement, such that the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Resale Registration Statement continuously effective under the Securities Act during its entire Effectiveness Periodis once again on Form F-3.
(civ) If: (i) The Company represents and warrants that there are sufficient ADRs registered on a Registration Statement is not filed registration statement on or prior to its Filing Date (if Form F-6 and available for issuance in respect of all Warrant ADSs issuable hereunder, and the Company files covenants that it will cause a Registration Statement without affording the Purchaser the opportunity sufficient number of ADRs to review and comment remain registered on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission registration statement on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective Form F-6 and available for issuance to satisfy the Purchaser as to Company’s obligations hereunder at all Registrable Securities to which it times that this Warrant is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiesoutstanding.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Registration. (a) On or prior to the applicable Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Each Registration Statement required to be filed under this Agreement shall be filed on Form S-3 S-1 (or on such other form appropriate for such purpose) and contain (except if otherwise required pursuant to written comments received from the Company is Commission upon a review of such Registration Statement, other than as to the characterization of any Holder as an underwriter, which shall not then eligible to register for resale occur without such Holder’s written consent) the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the each Registration Statement required to be declared effective under the Securities Act no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement Agreement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep each such Registration Statement continuously effective during its entire Effectiveness Period. By 5:00 p.m. (New York City time) on the Business Day immediately following the Effective Date of each Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule). If for any reason other than due solely to SEC Restrictions, a Registration Statement is effective but not all outstanding Registrable Securities are registered for resale pursuant thereto, then the Company shall prepare and file by the applicable Filing Date an additional Registration Statement to register the resale of all such unregistered Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415.
(b) Notwithstanding anything to the contrary contained in this Section 2, if the Company receives Commission Comments, and following discussions with and responses to the Commission in which the Company uses its reasonable best efforts and time to cause as many Registrable Securities for as many Holders as possible to be included in the Registration Statement filed pursuant to Section 2(a) without characterizing any Holder as an underwriter (and in such regard uses its reasonable best efforts to cause the Commission to permit the affected Holders or their respective counsel to participate in Commission conversations on such issue together with Company Counsel, and timely conveys relevant information concerning such issue with the affected Holders or their respective counsel), the Company is unable to cause the inclusion of all Registrable Securities, then the Company may, following not less than three (3) Trading Days prior written notice to the Holders (i) remove from the Registration Statement such Registrable Securities (the “Cut Back Shares”) and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities, in each case as the Commission may require in order for the Commission to allow such Registration Statement to become effective; provided, that in no event may the Company name any Holder as an underwriter without such Holder’s prior written consent (collectively, the “SEC Restrictions”). Unless the SEC Restrictions otherwise require, any cut-back imposed pursuant to this Section 2(b) shall be allocated among the Registrable Securities of the Holders on a pro rata basis. No liquidated damages under Section 2(d) shall accrue on or as to any Cut Back Shares, and the required Effectiveness Date for such Registration Statement will be tolled, until such time as the Company is able to effect the registration of the Cut Back Shares in accordance with any SEC Restrictions (such date, the “Restriction Termination Date”). From and after the Restriction Termination Date, all provisions of this Section 2 (including, without limitation, the liquidated damages provisions, subject to tolling as provided above) shall again be applicable to the Cut Back Shares (which, for avoidance of doubt, retain their character as “Registrable Securities”) so that the Company will be required to file with and cause to be declared effective by the Commission such additional Registration Statements in the time frames set forth herein as necessary to ultimately cause to be covered by effective Registration Statements all Registrable Securities (if such Registrable Securities cannot at such time be resold by the Holders thereof without volume limitations pursuant to Rule 144).
(c) Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register Registrable Securities for resale, the Company shall file a Registration Statement on Form S-3 covering all such Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be filed by the Filing Date for such Registration Statement and declared effective under the Securities Act as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor. Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement, other than as to the characterization of any Holder as an underwriter, which shall not occur without such Holder’s consent) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period. By 5:00 p.m. (New York City time) on the Business Day immediately following the Effective Date of such Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(cd) If: (i) a Registration Statement is not filed on or prior to its Filing Date covering the Registrable Securities required under this Agreement to be included therein (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date or if by the Business Day immediately following the Effective Date, the Company shall not have filed a “final” prospectus for the Registration Statement with the Commission under Rule 424(b) in accordance with the terms hereof (whether or not such a prospectus is technically required by such Rule), or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefor, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 30 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “"Event,” " and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 30 Trading Day Day-period is exceeded, being referred to as “"Event Date”"), thenthen in addition to any other rights the Holders may have hereunder or under applicable law, for so long as on each such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement. The parties agree that (1) the Company will not be liable for liquidated damages under this Agreement with respect to any (i) warrants issued to any placement agent as compensation in connection with the financing that is the subject of the Purchase Agreement or (ii) Placement Agent Warrant Shares and (2) in no event will the Company be liable for liquidated damages under this Agreement in excess of 1.0% of the aggregate Investment Amount of the Holders in any 30-day period and the maximum aggregate liquidated damages payable to a Holder under this Agreement shall be eight percent (8%) of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement. The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to (except in the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy case of the Purchaser under this Agreement for an Event. Notwithstanding first Event Date), and shall cease to accrue (unless earlier cured) upon the foregoing, no liquidated damages will accrue hereunder to expiration of the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable SecuritiesEffectiveness Period.
(de) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under Section 2(d) to any such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Samples: Registration Rights Agreement (Lightscape Technologies Inc.)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be , on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier earliest of (i) five years after the its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (the “Effectiveness Period”). By 5:00 p.m. (New York City time) on the Effective Date, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period. By 5:00 p.m. (New York City time) on the Effective Date of such Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness DateDate or if by the Business Day immediately following the Effective Date the Company shall not have filed a “final” prospectus for the Registration Statement with the Commission under Rule 424(b) (whether or not such a prospectus is actually required by such Rule), or (iii) (A) after its Effective Date, for the first two years after the Closing Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness PeriodPeriod for more than an aggregate of 30 Trading Days (which need not be consecutive), or (B) after its Effective Date, and subsequent to the second anniversary of the Closing Date, without regard for the reason thereunder or efforts therefore, such Registration Statement ceases for any reason to be effective and available to the Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period for more than an aggregate of 20 Trading Days for all such events (which need not be consecutive); provided, that any Trading Days not used towards the 30 Trading Day-period in subsection (iii)(A) may not be carried forward and used to extend the 20 Trading Day-period in subsection (iii)(B) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 30 or 20 Trading Day period Day-period, as applicable, is exceeded, being referred to as “Event Date”), thenthen in addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.0% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder for Securities pursuant to the Purchase Agreement from Agreement; and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser y) on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.5% of the aggregate Investment Amount paid by such Holder for Securities pursuant to the Purchase Agreement; provided, however, that the total amount of partial liquidated damages payable by the Company pursuant to all Events under this Section shall be capped at an aggregate of 10% of the aggregate Investment Amount paid by the Holders under the Purchase Agreement. The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under Section 2(c) to any such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Samples: Registration Rights Agreement (Metretek Technologies Inc)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be , on Form S-3 S-1 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold or may be sold without volume restrictions pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (the “Effectiveness Period”). By 5:00 p.m. (New York City time) on the Effective Date, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not then covered by an effective Registration Statement, then the Company shall prepare and file by the Filing Date for such Registration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-1 (or on such other form appropriate for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period. By 5:00 p.m. (New York City time) on the Effective Date of such Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(c) Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities for resale, the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be declared effective as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor. Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall cause such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period. By 5:00 p.m. (New York City time) on the Effective Date of such Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(d) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or if by the Business Day immediately following the Effective Date the Company shall not have filed a “final” prospectus for the Registration Statement with the Commission under Rule 424(b) in accordance with Section 2(a), 2(b) or 2(c) herein, as the case may be (whether or not such a prospectus is technically required by such Rule), or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefor, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 30 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 30 Trading Day Day-period is exceeded, being referred to as “Event Date”), then, for so long as then in addition to any other rights the Holders may have hereunder or under applicable law: on such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is curedcured the Company shall pay to each Holder, as partial liquidated damages and not as a penalty, an amount in cash equal to 1.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement. The parties agree that the Company will not be liable for liquidated damages under this Section in respect of the Warrants. In no event will the Company be liable for damages in excess of 1.0% of the aggregate Investment Amount of the Holders in any 30-day period and the maximum aggregate liquidated damages payable to a Holder under this Section 2(d) shall not exceed ten percent (10%) of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement. The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy case of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(de) Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be required to include the Registrable Securities of a Holder in a Registration Statements Statement and shall not be required to pay any liquidated or other damages under Section 2(d) to any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least five Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
(f) Subject to Section 5 hereof, the Required Holders shall have the right to select one legal counsel to review and oversee any registration pursuant to this Section 2 may contain shares (“Legal Counsel”), which shall be Xxxxxxx Xxxx & Xxxxx LLP or such other than Registrable Securities counsel as thereafter designated by the Required Holders. The Company and Legal Counsel shall reasonably cooperate with each other in accordance with performing the requirements of piggy-back rights granted Company’s obligations under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rightsthis Agreement.
Appears in 1 contract
Samples: Registration Rights Agreement (Microfield Group Inc)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be , on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 Trading Day Day-period is exceeded, being referred to as “Event Date”), thenthen in addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on and not as a penalty, equal to 1.0% (subject to reduction as provided in the Purchase Price following sentence) of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder for Shares pursuant to the Purchase Agreement from Agreement; and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser y) on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% (subject to reduction as provided in the following sentence) of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement. After such time as the Company shall have become obligated pursuant to this Section 2(c) to any Holder to make payments in aggregate of 4.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement, then the amount of liquidated damages to be calculated in accordance with the preceding sentence shall thereafter be reduced from 1.0% to 0.5% with respect to all damages accruing in excess of 4.0% of the aggregate Investment Amount paid by such Holder for Shares. The parties agree that the Company will not be liable for liquidated damages under this Section in respect of the Warrants. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 10% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy case of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under Section 2(c) to any such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Registration. (a) On or prior to the Filing Date, Date the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an a selling stockholder resale offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purposein accordance herewith). The Company shall cause each Registration Statement to become effective and remain effective as provided herein. The Company shall use its reasonable best efforts to cause the each Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the Effectiveness Date, and . The Company shall use its reasonable best commercial efforts to keep the each Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iiiii) such time as all of the Registrable Securities covered by such Registration Statement may be sold immediately without registration under the Securities Act and without volume restrictions pursuant to Rule 144(k) ), as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent and the affected Holders (the “"Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose"). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a the Registration Statement is not filed on or prior to its the Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or Date; (ii) a the Registration Statement is not declared effective by the Commission on or prior to its required by the Effectiveness Date, or ; (iii) after its Effective Datethe Registration Statement is filed with and declared effective by the Commission, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser (by suspension or otherwise) as to all Registrable Securities to which it is required to cover relate at any time prior to the expiration of its the Effectiveness PeriodPeriod (without being succeeded immediately by an additional registration statement filed and declared effective) for a period of time which shall exceed 30 days in the aggregate per year or more than 20 consecutive calendar days (defined as a period of 365 days commencing on the date the Registration Statement is declared effective); or (iv) the Common Stock is not listed or quoted, or is suspended from trading on any Trading Market for an aggregate a period of 20 five (5) consecutive Trading Days for all (provided the Company shall not have been able to cure such events trading suspension within 30 days of the notice thereof or list the Common Stock on another Trading Market); (any such failure or breach being referred to as an “"Event,” " and for purposes of clauses clause (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date which such 30 day or 20 consecutive day period (as the case may be) is exceeded, or for purposes of clause (iv) the date on which such 20 three (3) Trading Day period is exceeded, being referred to as “"Event Date”"), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) then until the applicable Event is cured. The , the Company shall pay to the Holders an amount in cash, as liquidated damages and not as a penalty, equal to 1.0% for each thirty (30) day period (prorated for partial periods) on a daily basis of the original principal amount of the Note; provided, that, in no event shall the Company pay more than 15.0% of the original principal amount of the Note in the aggregate to the Holders as liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an foregoing. While such Event other than with respect to the initial Event Date thereof. Following the cure of all Eventscontinues, the accrual of such liquidated damages shall ceasebe paid not less often than each thirty (30) days. The Any unpaid liquidated damages under as of the date when an Event has been cured by the Company shall be paid within three (3) business days following the date on which such Event has been cured by the Company. Within three business days of the Effectiveness Date, the Company shall cause its counsel to issue a blanket opinion substantially in the form attached hereto as Exhibit A, to the transfer agent stating that the shares are subject to an effective registration statement and can be reissued free of restrictive legend upon notice of a sale by the Purchaser and confirmation by the Purchaser that it has complied with the prospectus delivery requirements, provided that the Company has not advised the transfer agent orally or in writing that the opinion has been withdrawn. Copies of the blanket opinion required by this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder delivered to the Purchaser with respect to within the Primary Shares or Underlying Shares that are no longer Registrable Securitiestime frame set forth above.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 contain (except if otherwise required pursuant to written comments received from the Company is not then eligible to register for resale Commission upon a review of such Registration Statement) the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all that no Holder is an Affiliate of the Registrable Securities have Company and has been publicly sold by the Purchaser, or (iii) such time as all an Affiliate for a period of the Registrable Securities may be sold pursuant to Rule 144(k) at least 90 days (the “"Effectiveness Period”").
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not permitted by the Commission to be included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 . Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Company is not then eligible to register for resale Commission upon a review of such Registration Statement) the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover If at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within during the Effectiveness Period, liquidated damages will accrue based on the Purchase Price less than 95% of the affected then Registrable Securities paid by are then registered in a Registration Statement(s), then the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long Company shall file as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day periodsoon as reasonably practicable, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month case prior to the cure applicable Filing Date subject to any restrictions imposed by Rule 415, an additional Registration Statement covering the resale by the Holders of an Event other not less than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy 100% of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer number of then Registrable Securities.
(d) If the Company fails to file a Registration Statements under Statement on or prior to the applicable Filing Date, or if the Effective Date of a Registration Statement is not on or prior to the applicable Effectiveness Date, then the Investors will be entitled to receive the following:
(i) Each Investor will be entitled to receive, for no additional consideration, an additional number of shares of Common Stock equal to (A) 25,000 shares of Common Stock for each One Million Dollars ($1,000,000) in principal of the Note held by such Investor; plus (B) if such filing or effectiveness, as the case may be, is more than 30 days late, 5,000 shares of Common Stock for each One Million Dollars ($1,000,000) in principal of the Note held by such Investor and an additional 5,000 shares of Common Stock for each One Million Dollars ($1,000,000) in principal of the Note held by such Investor for each subsequent 30-day period that such filing or effectiveness, as the case may be, is late.
(ii) An Investor will be entitled to no such shares as set forth in Section 2(d)(i) hereof if the delay in filing or effectiveness, as the case may be, is attributable to any action or inaction of such Investor.
(iii) Such additional shares of Common Stock as set forth in this Section 2 may contain shares other than Registrable Securities in accordance with 2(d) shall be issuable at the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any time such Registration Statements as a result of such piggy-back rightspenalty is incurred.
Appears in 1 contract
Samples: Registration Rights Agreement (India Globalization Capital, Inc.)
Registration. (a) On or prior to the each Filing Date, the Company shall use its commercially reasonable efforts to prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be , on Form S-3 S-1 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its commercially reasonable best efforts to cause the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its Effectiveness Date, and shall use its commercially reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent and the affected Holders (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its commercially reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as reasonably possible but, in any event, no later than by its Effectiveness Date, and shall use its commercially reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 Trading Day Day-period is exceeded, being referred to as “Event Date”), thenthen in addition to any other rights the Holders may have hereunder or under applicable law, for so long subject to Section 2(d) hereof: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1% of the affected aggregate Investment Amount paid by such Holder for the Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from included on such Registration Statement and including the which have not otherwise been sold as of such Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date Date; and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser y) on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1% of the aggregate Investment Amount paid by such Holder for the Registrable Securities included on such Registration Statement and which have not otherwise been sold as of such Event Date. Notwithstanding anything to the contrary in this Section 2(c), in no event shall the Company be obligated to pay any liquidated damages to any Holder pursuant to this Section 2(c) in an aggregate amount that exceeds 19% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 10% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy case of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under Section 2(c) to any such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Samples: Registration Rights Agreement (Motorcar Parts America Inc)
Registration. (a) On or prior to the Filing Date, the The Company shall use its best efforts to prepare and file with the Commission SEC a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 S-1, SB-2 or on such othxx xxxx xs is available within forty-five (except if the Company is not then eligible to register for resale 45) days after any of the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose)are issued. The Company shall use its reasonable best efforts to cause the SEC to declare such Registration Statement promptly thereafter.
(b) Until the earlier of the Termination Date or the date on which all Registrable Securities are eligible to be declared effective sold under Rule 144 within any ninety day period (the Securities Act no later than period from the Effectiveness Datedate hereof until the earlier of such dates, and the "Registration Period"), the Company shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Such Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, on Form S-3 (except if or necessary to make the Company is not then eligible to register for resale the Registrable Securities on Form S-3statements therein, in light of the circumstances in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible butthey were made, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Periodnot misleading.
(c) If: During the Registration Period, the Company shall use its best efforts to prepare and file with the SEC such amendments (iincluding post-effective amendments) a and supplements to the Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is not to be filed on or prior pursuant to its Filing Date (if Rule 424 promulgated under the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same 1933 Act, as may be required by Section 3(a) hereoflaw. Notwithstanding any provision herein to the contrary, the Company shall not be deemed to have satisfied be in violation of this clause Section 2(b) or any other provision of this Schedule if, at any time, the Company delivers to the Purchasers a notice (a "Suspension Notice") indicating that the Purchasers must suspend the use of any Registration Statement while the Company either amends or supplements such Registration Statement or files a new Registration Statement, provided that (i))) the Company determines, or upon advice of counsel, that such suspension is appropriate under applicable securities laws and (ii) the Company promptly seeks to take such action as it determines to be appropriate under such laws to enable the disposition of the Registrable Securities by the Purchasers. The Purchasers shall refrain from disposing of any Registrable Securities upon receipt of a Suspension Notice delivered in accordance with this Section 2(b).
(d) The Company shall furnish to each Purchaser without charge, (i) at least one copy of such Registration Statement is not as declared effective by the Commission on SEC and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus, (ii) one copy of the final prospectus included in such Registration Statement and all amendments and supplements thereto (or prior to its required Effectiveness Date, or such other number of copies as such Purchaser may reasonably request) and (iii) such other documents as such Purchaser may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Purchaser.
(e) As promptly as practicable after its Effective Datebecoming aware of such event or development, without regard for the reason thereunder Company shall notify the Purchasers in writing of the happening of any event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or efforts therefor other than omission to state a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason material fact required to be effective and available stated therein or necessary to make the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Periodstatements therein, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price in light of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on circumstances under which the Event has been cured. For so long as the Event has they were made, not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but misleading (provided that in no event shall such rate exceed 1.00% per annumnotice contain any material, nonpublic information), and promptly prepare a supplement or amendment to such Registration Statement to correct such untrue statement or omission, and deliver two (2) copies of such supplement or amendment to each Purchaser. The liquidated damages Company shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to also promptly notify the Purchaser of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
(f) The Company shall use its best efforts either to cause all the Registrable Securities covered by a Registration Statement to be listed on each monthly anniversary securities exchange on which securities of each such Event Date thereof (the same class or series issued by the Company are then listed, if any, if the applicable Event shall not have been cured by listing of such date) until Registrable Securities is then permitted under the applicable Event is curedrules of such exchange or to secure the inclusion for quotation on the National Association of Securities Dealers, Inc. OTC Bulletin Board for such Registrable Securities. The liquidated damages pursuant to the terms hereof Company shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than pay all fees and expenses in connection with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages satisfying its obligation under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities2(f).
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the Commission SEC a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 S-1 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3S-1, in which case such registration shall be on another appropriate form for such purposein accordance herewith). The Company shall cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its commercially reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the Effectiveness Date, and . The Company shall use its commercially reasonable best efforts (including, without limitation, amendment of any Registration Statement or the filing of a Registration Statement on a different form should the Company qualify to use such a form to keep the a Registration Statement that registers the sale by the Holder or its successors or assignees of the Registrable Securities continuously effective under the Securities Act until the date which that is the earlier date of when (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iiiii) such time as all three years after the date of the Registrable Securities may be sold pursuant to Rule 144(k) this Agreement (the “Effectiveness Period”).
(b) If for any reason Notwithstanding anything in this Agreement to the Commission does not permit all of contrary, the Registrable Securities Company shall, by written notice to be included in the Holder, advise the Holder that sales under the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which Effectiveness Date might be unlawful due to the Commission shall indicate as being the first date or time fact that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3engaged in a material merger, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on acquisition or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i))sale, or (ii) a Registration Statement is not declared effective by the Commission on other pending material financing, corporate reorganization or prior to its required Effectiveness Date, other transaction or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for that an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements occurred as a result of which it is reasonably expected that the Company’s financial statements will be restated or the Registration Statement contains or will contain a misstatement of a material fact or omit to make a statement required to make the statements therein not misleading. Upon receipt of such piggynotice, the Holder shall immediately discontinue any sales of Registrable Securities pursuant to such Registration Statement until the Holder has received copies of a supplemented or amended Prospectus or until the Holder is advised in writing by the Company that the then-back rightscurrent Prospectus may be used and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus.
Appears in 1 contract
Samples: Registration Rights Agreement (Voice Mobility International Inc)
Registration. (a) On or prior to the Filing DateDate for the Warrant Shares, the Company shall use its commercially reasonable efforts to prepare and file with the Commission SEC a Registration Statement covering the resale of all Registrable Securities not already covered by an existing 100% of the number of Conversion Shares and effective Registration Statement Warrant Shares underlying the Notes and Warrants issued to the Holders on the date of this Agreement for an offering to be made on a continuous basis pursuant to Rule 415415 (which number of shares is deemed by the parties to be a reasonable, good faith estimate of the maximum number of shares issuable pursuant to the Notes and Warrants through conversion or exercise by the Holders or through the payment by the Company of principal, interest, or redemption thereunder). The Registration Statement shall be on Form S-3 S-1 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). ) and shall contain (unless otherwise directed by the Holders and except if otherwise required pursuant to comments received from the SEC upon a review of such Registration Statement or pursuant to judicial and SEC interpretations) substantially the “Plan of Distribution” attached hereto as Annex A. The Company shall use its commercially reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as reasonably possible but, in any event, no later than its the applicable Effectiveness Date, and shall use its commercially reasonable best efforts to keep such the Registration Statement continuously effective under the Securities Act during its entire Effectiveness the balance of the applicable Registration Period.
(cb) IfSubject to the last sentence of this Section 2(b), if: (i) a Registration Statement under subsection (a) above is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i))Date, or (ii) a Registration Statement under subsection (a) above is not declared effective by the Commission SEC on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement under subsection (a) above ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, the Registration Period for more than an aggregate of 20 thirty (30) Trading Days during any 12-month period (which need not be consecutive), or (iv) beginning on the date on which the first Registration Statement required by this Agreement is declared effective by the SEC, there are Excluded Securities (as defined in Section 2(c) below) not included for all such events resale in a Registration Statement (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 thirty (30) Trading Day Day-period is exceeded, being referred to as an “Event Date”), then, for so long as such event is within in addition to any other rights available to the Effectiveness Period, liquidated damages will accrue based Holders under this Agreement or under applicable law: on the Purchase Price last day of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90each 30-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of after each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to 1.0% of the then-outstanding principal amount of the Notes purchased by such Holder pursuant to the Purchase Agreement (the “Note Amount”). Notwithstanding anything to the contrary in this Section 2(b), the parties agree that (A) the Company will not be liable for liquidated damages under this Agreement with respect to any Warrants or Warrant Shares, (B) in no event will the Company be liable for liquidated damages under this Agreement in excess of 1.0% of the aggregate Note Amount of the Holders for any 30-day period (even if there are multiple Events during the same 30-day period), (C) the maximum aggregate liquidated damages payable to a Holder under this Agreement shall be eighteen percent (18%) of the aggregate original Note Amount of such Holder’s Notes, and (D) in the case of an Event described in clause (iv) of this paragraph, liquidated damages will not begin to accrue until the first Registration Statement filed under this Agreement is declared effective by the SEC and will cease to accrue on any Conversion Shares that are Excluded Securities as of the date on which an Additional Registration Statement is declared effective by the SEC for the resale of such Conversion Shares or, if earlier, on the date on which such Conversion Shares can first be sold by the Holder under Rule 144. The liquidated damages pursuant to the terms hereof preceding sentence shall apply and be payable on a pro rata basis for any portion of a month 30-day period prior to the cure of an Event other than with respect and shall cease to accrue (unless earlier ceased) upon expiration of the Registration Period.
(c) Notwithstanding anything to the initial Event Date thereof. Following the cure of all Eventscontrary contained in this Agreement, the accrual of liquidated damages Company shall cease. The liquidated damages under this Section 2(c) shall not be the sole and exclusive remedy of the Purchaser required under this Agreement to file or amend a Registration Statement for an Eventany offering that would be deemed by the SEC to constitute a primary offering of securities by the Company. Notwithstanding In the foregoingevent that, no liquidated damages will accrue hereunder to as a result of the Purchaser with respect to operation of the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than preceding sentence, the Company cannot include all of the Registrable Securities in accordance the Registration Statement, then the Company shall include in the Registration Statement the maximum number of Registrable Securities that can be included therein without causing the Registration Statement to be deemed to register a primary offering by the Company, with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities included in the Registration Statement to be allocated among the Holders in proportion to the total Warrant Shares and Conversion Shares held by each Holder (or issuable upon conversion or exercise of such Holder’s Notes and Warrants) on the date that the Registration Statement is filed. With respect to any Registrable Securities that are not included in the Registration Statement (the “Excluded Securities”), the Company shall include the Excluded Securities in a subsequently filed second Registration Statement (the “Additional Registration Statement”) that is filed on the earliest possible date on which Excluded Securities can be included in the Additional Registration Statement without the Additional Registration Statement being deemed to register a primary offering of securities by the Company (the “Additional Filing Date”); provided that if the Company is advised by the SEC that the inclusion of all Excluded Securities in the Additional Registration Statement would cause the Additional Registration Statement to be deemed a registration of a primary offering by the Company, then such Additional Registration Statement shall include only the maximum number of Excluded Securities that could be included in such Registration Statement without it being deemed to be a registration for a primary offering by the Company. If all Excluded Securities cannot be cutback registered on the Additional Registration Statement, then the Company will be obligated to file a second Additional Registration Statement as soon as is permitted by the SEC to cover as many additional Excluded Securities as possible, although the Company will not be obligated to file any more than two (2) Additional Registration Statements for Excluded Securities. The Company’s obligations under this Agreement with respect to the first Additional Registration Statement and second Additional Registration Statement shall be the same as its obligations for the original Registration Statement, provided that the “Filing Date” for the first Additional Registration Statement shall be the Additional Filing Date, and the “Effectiveness Date” for the Additional Registration Statement shall be delayed by the number of days that elapses between the Filing Date and Additional Filing Date; and further provided that the “Filing Date” for the second Additional Registration Statement (if applicable) shall be the earliest possible date on which Excluded Securities can be included in the second Additional Registration Statement without the second Additional Registration Statement being deemed to register a primary offering of securities by the Company (the “Second Additional Filing Date”), and the “Effectiveness Date” for such second Additional Registration Statement shall be delayed by the number of days that elapses between the Filing Date for the original Registration Statement and the Second Additional Filing Date. In the event that a Holder sells or otherwise transfers any of such Holder’s Registrable Securities, each transferee shall be allocated a pro rata portion of the then-remaining number of Registrable Securities included in any Registration Statement for such transferor. To the extent permitted under applicable SEC rules, procedures, or practices, any shares of Common Stock included in a Registration Statement and which remain allocated to any Person which ceases to hold any Registrable Securities covered by such Registration Statements as a result Statement shall be allocated to the remaining Holders pro rata based on the number of Registrable Securities then held by such piggy-back rightsHolders which are covered by such Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Liquidmetal Technologies Inc)
Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purposein accordance herewith). The Subject to the terms of this Agreement, the Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon promptly as possible butafter the filing thereof, but in any event, no later than its event prior to the Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire until all Registrable Securities covered by such Registration Statement have been sold, or may be sold without volume restrictions pursuant to Rule 144(k), as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (the “Effectiveness Period”). The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. New York City time on a Trading Day. The Company shall immediately notify the Holders via facsimile or electronically or through a press release or other public announcement of the effectiveness of a Registration Statement on the same Trading Day that the Company telephonically confirms effectiveness with the Commission, which shall be the date requested for effectiveness of a Registration Statement. The Company shall, by 9:30 a.m. New York City time on the second Trading Day after the date the Registration Statement is declared effective by the Commission, file a final Prospectus with the Commission as required by Rule 424. Failure to so notify the Holder within 2 Trading Days of such notification of effectiveness or failure to file a final Prospectus as foresaid shall be deemed an Event under Section 2(b).
(cb) If: (i) a If the Registration Statement is not filed on or prior to its the Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereofDate, the Company shall issue to each Holder, as such Holder’s sole and exclusive remedy and as partial liquidated damages and not be deemed as a penalty, that number of shares of Common Stock equal to have satisfied this clause 10% of that number of shares of Common Stock acquired by such Holder pursuant to the Purchase Agreements. Moreover, (i)), or (ii) a if the Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or prior by the Effectiveness Date or, (ii) subject to its required Section 3(j) below, if after the Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than Date a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be remain continuously effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness PeriodSecurities, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, Event occurs being referred to as the “Event Date”), ) then, for so long as in addition to any other rights the Holders may have hereunder or under applicable law, on each such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if Date, the applicable Event Company shall pay to each Holder an amount in cash, as partial liquidated damages and not have been cured as a penalty, equal to 1% of the aggregate purchase price, up to a maximum of 3%, paid by such date) until the applicable Event is cured. The liquidated damages Holder pursuant to the terms hereof shall apply Purchase Agreements for any Registrable Securities then held by such Holder (calculated as if all convertible securities had been fully converted). Notwithstanding anything herein to the contrary, to the extent that the registration of any or all of the Registrable Securities by the Company on a pro rata basis for any portion registration statement is prohibited (the “Non-Registered Shares”) as a result of a month prior rules, regulations, positions or releases issued or actions taken by the Commission pursuant to the cure of an Event other than its authority with respect to Rule 415 and the initial Event Date thereof. Following Company has registered at such time the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the maximum number of Registrable Securities permissible upon consultation with the Commission, then the liquidated damages described in this Section 2(b) shall not be cutback under any applicable to such Registration Statements as a result of such piggyNon-back rightsRegistered Shares.
Appears in 1 contract
Samples: Registration Rights Agreement (Southridge Technology Group, Inc.)
Registration. (a) On In case the Company shall receive a Demand Notice, the Company shall, on or prior to the Filing DateDeadline, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an a selling stockholder resale offering to be made on a continuous basis pursuant to Rule 415. The Each Registration Statement shall be on Form S-3 or F-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3S-3 or F-3, in which case such registration shall be on another appropriate form for such purposein accordance herewith). The Company shall use its commercially reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in no event later than the Effectiveness DateDeadline, and to remain effective continuously throughout the Effectiveness Period. The Company shall use its reasonable best efforts to keep promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement continuously effective under the Securities Act until the date which is the earlier within one (1) business day of (i) five years after the Effective Date. Notwithstanding the registration obligations set forth in this Article 2, (ii) such time as in the event the Commission informs the Company that all of the Registrable Securities have been publicly sold cannot, as a result of the application of Rule 415, be registered for resale on a single registration statement, the Company agrees to promptly (i) inform each of the Holders thereof, (ii) use its commercially reasonable efforts to file amendments to the Registration Statement as required by the Purchaser, or Commission and/or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in withdraw the Registration Statement filed pursuant to Section 2(aand file a new registration statement (a “New Registration Statement”), or for any other reason any in either case covering the maximum number of Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering permitted to be made on a continuous basis pursuant to Rule 415registered by the Commission, on Form S-3 (except if the Company is not then eligible or F-3 or such other form available to register for resale the Registrable Securities on Form S-3as a secondary offering; provided, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible buthowever, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or that prior to its Filing Date (if the Company files a filing such amendment or New Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereofStatement, the Company shall not be deemed obligated to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by use its commercially reasonable efforts to advocate with the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to registration of all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements SEC Guidance. In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (ii) or (iii) above, the Company will use its commercially reasonable efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of piggy-back rights granted under predecessor agreementssecurities in general, provided, that the number of one or more registration statements on Form S-3 or F-3 or such other form available to register for resale those Registrable Securities shall that were not be cutback under any such registered for resale on the Registration Statements Statement, as a result of such piggy-back rightsamended, or the New Registration Statement (the “Remainder Registration Statements”).
Appears in 1 contract
Samples: Registration Rights Agreement (Lone Oak Acquisition Corp)
Registration. (a) On or prior to Following the Filing Date, date hereof the Company shall use its commercially reasonable best efforts to prepare and file with the Commission a Registration Statement on Form S-3 covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the Effectiveness DateDeadline, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years one year after the Effective Closing Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, or (iii) such time as all of the Registrable Securities may be sold become eligible for resale by non-affiliates pursuant to Rule 144(k) 144 (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in If: a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required the Effectiveness DateDeadline, or (iiiii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 Trading Days 45 days (which need not be consecutive days) during any three-month period or for all such events more than an aggregate of 90 days (which need not be consecutive days) during any 12-month period (any such failure or breach being referred to as an “Event,” and for purposes of clauses clause (i) and (ii) the date on which such Event occurs, or for purposes of clause (iiiii) the date on which such 20 Trading Day the applicable period is exceeded, being referred to as “Event Date”), thenthen in addition to any other rights the Holders may have hereunder or under applicable law, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy case of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(dc) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements Agreement as Annex B (a result of such piggy-back rights“Selling Holder Questionnaire”).
Appears in 1 contract
Registration. (a) On or prior to the Filing Date, Date the Company shall prepare and file with the Commission a "shelf" Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register or on another form appropriate for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purposein accordance herewith). The Company shall (i) not permit any securities other than the Registrable Securities and any shares issuable pursuant to any warrant issued to any financial advisor or placement agent in connection with the transaction described in the Purchase Agreement (the "PLACEMENT SHARES") to be included in the Registration Statement and (ii) use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no later than within 90 days from the Closing Date, but in any event prior to the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
until such date as is the earlier of (cx) If: the date when all Registrable Securities covered by such Registration Statement have been sold or (iy) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144(k) as determined by the counsel to the Company (such counsel to be reasonably acceptable to the Holders of a majority of the Registrable Securities) pursuant to a written opinion letter, addressed to the Company's transfer agent to such effect (the "EFFECTIVENESS PERIOD"). If an additional Registration Statement is not required, for any reason, to be filed on or prior to its Filing Date (if because the Company files a Registration Statement without affording actual number of shares of Common Shares and Warrant Shares exceeds the Purchaser number of shares of Common Stock initially registered in respect of the opportunity to review Common Shares and comment on the same as required by Section 3(a) hereofWarrant Shares, the Company shall not be deemed have 20 Business Days to have satisfied this clause (i))file such additional Registration Statement, or (ii) a and the Company shall use its best efforts to cause such additional Registration Statement to be declared effective by the Commission as soon as possible, but in no event later than 90 days after filing.
(b) If the Registration Statement covering the Registrable Securities required to be filed by the Company pursuant to Section 2(a) hereof is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iiithen the Company shall make payments to the Investors in such amounts and at such times as shall be determined pursuant to this Section 2(b) after its Effective Date, without regard as partial relief for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available damages to the Purchaser as Investors by reason of any such delay in or reduction of their ability to all sell the Registrable Securities (which remedy shall not be exclusive of any other remedies available at law or in equity). The Company shall pay to which it is required to cover at any time prior each holder of Registrable Securities an amount equal to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes Liquidation Preference (as defined in the NoteCertificate of Designations) of the Preferred Stock then outstanding and/or of the Common Stock (valued at the higher of $7.00 or the per share Market Price (as defined in the Warrant)), to as applicable (the Purchaser on each monthly anniversary "AGGREGATE SHARE PRICE"), multiplied by the Applicable Percentage (as defined below) times the number of each such Event months (prorated for partial months) after the Effectiveness Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month and prior to the cure of an Event other than date the Registration Statement is declared effective by the Commission; PROVIDED, HOWEVER, that there shall be excluded from such period any delays which are soley attributable to changes required by the Investors in the Registration Statement with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder information relating to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.Investors,
Appears in 1 contract
Registration. (a) On If Lender shall exercise its right to sell all or prior to any part of the Filing DatePledged Collateral following an Event of Default which is continuing and the acceleration of the payment of the Obligations, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3if, in which case such registration shall be on another appropriate form the opinion of counsel for such purposeLender, it is necessary to have the Pledged Collateral being sold registered under the provisions of the Securities Act of 1933, as amended (the “Securities Act”). The Company shall , Pledgor will use its commercially reasonable best efforts to cause the Registration Statement applicable Issuer to execute and deliver, and to cause the directors and officers of such Issuer to execute and deliver, all at Pledgor’s expense, all such instruments and documents and to do or cause to be declared effective done all such other acts and things as may be necessary to register the Pledged Collateral being sold under the Securities Act no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under provisions of the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose)Act. The Company shall Pledgor will use its commercially reasonable best efforts to cause each any such Registration Statement registration statement to be declared become effective under and to remain effective for a period of one year from the Securities Act as soon as possible butdate of the first public offering of the Pledged Collateral being sold and to make all amendments thereto and to related documents which, in any eventthe opinion of Lender or its counsel, no later than its Effectiveness Dateare necessary or advisable in their reasonable discretion, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event all in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance conformity with the requirements of piggy-back rights granted under predecessor agreementsthe Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto. Pledgor shall also use commercially reasonable efforts to cause the applicable Issuer to comply with the provisions of the “Blue Sky” law of any jurisdiction which Lender shall designate in connection with any sale hereunder; and will use commercially reasonable efforts to cause the applicable Issuer to make available to its security holders, providedas soon as practicable, an earnings statement (which need not be audited) covering a period of at least twelve months but not more than eighteen months, beginning with the first month after the effective date of any such registration statement, which earnings statement will satisfy the provisions of Section 11(a) of the Securities Act. Pledgor acknowledges that a breach of any of the covenants contained in this Section may cause irreparable injury to Lender, that the number of Registrable Securities shall not be cutback under any Lender will have no adequate remedy at law with respect to such Registration Statements breach and, as a result consequence, such covenants of such piggy-back rightsPledgor shall be specifically enforceable against Pledgor.
Appears in 1 contract
Samples: Loan and Security Agreement
Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be , on Form S-3 [SB-2] (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) (the “"Effectiveness Period”"). Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities for resale (but in no event more than thirty days after such date), the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement). The Company shall cause such Registration Statement to be declared effective under the Securities Act as soon as possible thereafter and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period.
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 [SB-2] (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its the Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company Registration Statement shall not be deemed to have satisfied not filed within the meaning of this clause (i)), ; or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, ; or (iii) after its Effective DateDate and during the Effectiveness Period, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefor, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 30 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “"Event,” " and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 30 Trading Day Day-period is exceeded, being referred to as “"Event Date”"), thenthen in addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 2% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder for Shares pursuant to the Purchase Agreement from Agreement; and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser y) on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 2% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement, provided, however, that the Company shall not be required to pay more than an aggregate of 18% of the Investment Amount in liquidated damages. The parties agree that the Company will not be liable for liquidated damages under this Section in respect of the Warrants. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a simple annual rate of 10% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy case of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a "Selling Holder Questionnaire"). The Company shall not be cutback required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under Section 2(d) to any such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Samples: Registration Rights Agreement (Sys)
Registration. (a) On or prior to the applicable Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities (other than the Make Good Escrow Shares and Listing Shares, which shares shall be included and covered by such Registration Statement if the applicable Delivery Date for such shares shall have occurred) not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Each Registration Statement required to be filed under this Agreement shall be filed on Form S-1 (Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities utilize such Form or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). ) and contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement, other than as to the characterization of any Holder as an underwriter, which shall not occur without such Holder’s written consent) the "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the each Registration Statement required to be declared effective under the Securities Act no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement Agreement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep each such Registration Statement continuously effective during its entire Effectiveness Period. By 5:00 p.m. (New York City time) on the Business Day immediately following the Effective Date of each Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule). If for any reason other than due to SEC Restrictions, a Registration Statement is effective but not all outstanding Registrable Securities are registered for resale pursuant thereto, then the Company shall prepare and file by the applicable Filing Date an additional Registration Statement to register the resale of all such unregistered Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415.
(b) Notwithstanding anything to the contrary contained in this Section 2, if the Company receives Commission Comments, and following discussions with and responses to the Commission in which the Company uses its reasonable best efforts and time to cause as many Registrable Securities (other than the Make Good Escrow Shares and Listing Shares unless the applicable Delivery Date for such shares shall have occurred) for as many Holders as possible to be included in the Registration Statement filed pursuant to Section 2(a) without characterizing any Holder as an underwriter (and in such regard uses its reasonable best efforts to cause the Commission to permit the affected Holders or their respective counsel to participate in Commission conversations on such issue together with Company Counsel, and timely conveys relevant information concerning such issue with the affected Holders or their respective counsel), the Company is unable to cause the inclusion of all Registrable Securities, then the Company may, following not less than three (3) Trading Days prior written notice to the Holders (i) remove from the Registration Statement such Registrable Securities (the “Cut Back Shares”) and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities, in each case as the Commission may require in order for the Commission to allow such Registration Statement to become effective; provided, that in no event may the Company name any Holder as an underwriter without such Holder’s prior written consent (collectively, the “SEC Restrictions”) and provided, further, that before a cut back of any Registrable Securities, the Company shall cut back all Make Good Escrow Shares and Listing Shares. In furtherance of the foregoing, unless the SEC Restrictions otherwise require, any cut-back imposed pursuant to this Section 2(b) shall be allocated among the Registrable Securities of the Holders on a pro rata basis. No liquidated damages under Section 2(f) shall accrue on or as to any Cut Back Shares, and the required Effectiveness Date for such Registration Statement will be tolled, until such time as the Company is able to effect the registration of the Cut Back Shares in accordance with any SEC Restrictions (such date, the “Restriction Termination Date”). From and after the Restriction Termination Date, all provisions of this Section 2 (including, without limitation, the liquidated damages provisions, subject to tolling as provided above) shall again be applicable to the Cut Back Shares (which, for avoidance of doubt, retain their character as “Registrable Securities”) so that the Company will be required to file with and cause to be declared effective by the Commission such additional Registration Statements in the time frames set forth herein as necessary to ultimately cause to be covered by effective Registration Statements all Registrable Securities (if such Registrable Securities cannot at such time be resold by the Holders thereof without volume limitations pursuant to Rule 144).
(c) Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register Registrable Securities for resale, the Company shall file a Registration Statement on Form S-3 covering all such Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be filed by the Filing Date for such Registration Statement and declared effective under the Securities Act as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor. Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement, other than as to the characterization of any Holder as an underwriter, which shall not occur without such Holder’s consent) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
. By 5:00 p.m. (cNew York City time) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereofBusiness Day immediately following the Effective Date of such Registration Statement, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by file with the Commission on or prior in accordance with Rule 424 under the Securities Act the final prospectus to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event be used in compliance connection with Section 6(c), sales pursuant to such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it (whether or not such filing is technically required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all under such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”Rule), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) On or prior to the Filing Date, the Company shall prepare and file with the Commission a Registration Statements Statement covering the resale of the Make Good Escrow Shares and the Listing Shares on Form S-3 if the Company is then eligible to utilize such Form (or on such other form appropriate for such purpose) and shall cause such Registration Statement to be filed by the Filing Date for such Registration Statement and declared effective under this Section 2 may the Securities Act as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor. Such Registration Statement shall contain shares (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement, other than Registrable as to the characterization of any Holder as an underwriter, which shall not occur without such Holder’s consent) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period which is applicable to it. By 5:00 p.m. (New York City time) on the Business Day immediately following the Effective Date of such Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the requirements of piggy-back rights granted under predecessor agreements, provided, that Securities Act the number of Registrable Securities shall not final prospectus to be cutback under any used in connection with sales pursuant to such Registration Statements as a result of Statement (whether or not such piggy-back rightsfiling is technically required under such Rule).
Appears in 1 contract
Samples: Registration Rights Agreement (China New Energy Group CO)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an a selling stockholder resale offering to be made on a continuous basis pursuant to Rule 415. The Each Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for in accordance herewith). The Company shall (i) with respect to the Registration Statement required to be filed in connection with the Note, the Minimum Borrowing Note, and the Warrants, use its best efforts to cause such purpose)Registration Statement to become A&R Registration Rights Agreement 3 effective as provided herein; provided that, such Registration Statement shall be required to remain effective as provided herein notwithstanding the use of best efforts by the Company and (ii) in respect of each other Registration Statement, cause each such Registration Statement to become effective and remain effective as provided herein notwithstanding the use of best efforts by the Company. The Company shall use its reasonable best commercial efforts to cause the each Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the Effectiveness Date, and . The Company shall use its reasonable best commercial efforts to keep the each Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) five years after the Effective Date, all Registrable Securities covered by such Registration Statement have been sold or (ii) such time as all of the Registrable Securities have been publicly sold covered by the Purchaser, or (iii) such time as all of the Registrable Securities Registration Statement may be sold immediately without registration under the Securities Act and without volume restrictions pursuant to Rule 144(k) ), as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (the each, an “Effectiveness Period”).
(b) If for any reason the Commission does not permit all Within three business days of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not cause its counsel to issue a blanket opinion in the form attached hereto as Exhibit A, to the transfer agent stating that the shares are subject to an effective registration statement and can be deemed to have satisfied this clause (i)), or (ii) reissued free of restrictive legend upon notice of a Registration Statement is not declared effective sale by the Commission on Purchaser and confirmation by the Purchaser that it has complied with the prospectus delivery requirements, provided that the Company has not advised the transfer agent orally or prior to its in writing that the opinion has been withdrawn. Copies of the blanket opinion required Effectiveness Date, or (iiiby this Section 2(b) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to shall be effective and available delivered to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiestime frame set forth above.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Samples: Registration Rights Agreement (Accentia Biopharmaceuticals Inc)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Each Registration Statement required hereunder shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for in accordance herewith). Each Registration Statement required hereunder shall contain (except if otherwise directed by the Holders) the “Plan of Distribution” attached hereto as Annex A. The Company shall cause such purpose)Registration Statement to become effective and remain effective as provided herein. The Company shall use its reasonable best efforts to cause the each Registration Statement to be declared effective under the Securities Act no later than as promptly as possible after the filing thereof, but in any event prior to its Effectiveness Date, and shall use its reasonable best efforts to keep the each Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five two years after the Effective Date, (ii) date that such time as Registration Statement is declared effective by the Commission or such earlier date when all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold without volume restrictions pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (ia) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser Holder the opportunity to review and comment on the same as required by Section 3(a) hereof), the Company shall not be deemed to have satisfied this clause (ia)), or (iib) the Company fails to file with the Commission a request for acceleration in accordance with Rule 461 promulgated under the Securities Act, within five Trading Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission that a Registration Statement will not be “reviewed,” or not subject to further review, or (c) prior to the date when such Registration Statement is first declared effective by the Commission, the Company fails to file a pre-effective amendment and otherwise respond in writing to comments made by the Commission in respect of such Registration Statement within ten Trading Days after the receipt of comments by or notice from the Commission that such amendment is required in order for a Registration Statement to be declared effective, or (d) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or prior to its required before the Effectiveness Date, or (iiie) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement is first declared effective by the Commission, it ceases for any reason to be remain continuously effective and available to the Purchaser as to all Registrable Securities to for which it is required to cover at any time prior be effective, or the Holders are not permitted to utilize the expiration of its Effectiveness PeriodProspectus therein to resell such Registrable Securities, for in any such cases an aggregate of 20 ten Trading Days for all such events (which need not be consecutive Trading Days) (any such failure or breach being referred to as an “Event,” and for purposes of clauses clause (ia) and or (iid) the date on which such Event occurs, or for purposes of clause (iiib) the date on which such 20 five Trading Day period is exceeded, or for purposes of clauses (c) the date which such ten Trading Day period is exceeded, or for purposes of clause (e) the date on which such ten Trading Day period is exceeded being referred to as “Event Date”), thenthen in additional to any other rights the Holders may have hereunder or applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1% of the affected Registrable Securities aggregate purchase price paid by the Purchaser such Holder pursuant to the Purchase Agreement from Agreement; and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser y) on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to 2% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement. The If the Company fails to pay any liquidated damages pursuant to this Section in full within seven days after the terms hereof shall apply on date payable, the Company will pay interest thereon at a pro rata basis for any portion rate of a month prior 18% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the cure of an Event other than with respect to Holder, accruing daily from the initial Event Date thereof. Following the cure of all Events, the accrual of date such liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoingare due until such amounts, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that plus all such interest thereon, are no longer Registrable Securitiespaid in full.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). ) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five two years after the Effective Date, (ii) at such time as all of the Registrable Securities have been publicly sold by the PurchaserHolders, or (iii) at such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities Shares to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Datethe 30th calendar day following such date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” substantially in the form attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its the 90th calendar day following the date on which the Company becomes aware that such Registration Statement is required under this Agreement (each such 90th calendar day, the “Effectiveness Date” for such Registration Statement), and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for an aggregate of more than an aggregate of 20 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 Trading Day Day-period is exceeded, being referred to as “Event Date”), then, for so long in addition to any other rights available to the Holders under the Transaction Documents or under applicable law,: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as such event is within the Effectiveness Period, liquidated damages will accrue based and not as a penalty, equal to 2% of the product of (1) the number of Shares then held by such Holder on such Event Date and (2) the greater of (x) the Per Share Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to under the Purchase Agreement from and including (y) the closing sales price of the Common Stock on the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date Date; and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to 2% of the product of (1) the number of Shares then held by such Holder on such anniversary and (2) the greater of (x) the Per Share Purchase Price under the Purchase Agreement and (y) the closing sales price of the Common Stock on such anniversary. If the Company fails to pay any liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under any Section 2(c) hereof to such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully completed Selling Holder Questionnaire at least one Trading Day prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Samples: Registration Rights Agreement (Authentidate Holding Corp)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its commercially reasonable best efforts to cause the such Registration Statement to be declared effective under the Securities Act as soon as reasonably practicable but, in any event, no later than the its Effectiveness Date, and shall use its commercially reasonable best efforts to keep the each Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five three years after the its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been sold by the Holders pursuant to the Registration Statement or otherwise publicly sold by the PurchaserHolders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible reasonably practicable but, in any event, no later than by its Effectiveness Date, and shall use its commercially reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereofStatement, the Company shall not be deemed to have satisfied this clause (i)), ; or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 Trading Day Day-period is exceeded, being referred to as “Event Date”), thenthen in addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant and not as a penalty, equal to the Purchase Agreement from $10,000; and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser y) on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to $10,000. The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy case of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities The Company shall not be cutback required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under Section 2(c) to any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire in the form provided to all other Investors participating in such Registration Statements as a result of such piggy-back rightsregistration at least three Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Samples: Registration Rights Agreement (Irvine Sensors Corp/De/)
Registration. (a) On Subject to DSR being listed or prior to the Filing Datequoted on an Eligible Market, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible Secured Party shall exercise its right to register for resale sell all or any part of the Registrable Securities on Form S-3Collateral following the occurrence and during the continuance of an Event of Default, and if, in which case such registration shall be on another appropriate form the opinion of counsel for such purposethe Secured Party it is necessary to have the Collateral being sold registered under the provisions of the Securities Act of 1933, as amended (the "Securities Act"). The Company shall , Pledgor will use its reasonable best efforts to cause the Registration Statement applicable Issuer ("Issuer") to execute and deliver, and to cause the directors and officers of such Issuer to execute and deliver, all at Pledgor's expense, all such instruments and documents and to do or cause to be declared effective done all such other acts and things as may be necessary to register the Collateral being sold under the Securities Act no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under provisions of the Securities Act until Act. Pledgor shall cause any such registration statement to become effective and to remain effective for a period of one (I) year from the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all first public offering of the Registrable Securities may be Collateral being sold pursuant and to Rule 144(k) (make all amendments thereto and to related documents which, in the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all opinion of the Registrable Securities to be included Secured Party or its counsel, are necessary or advisable, all in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance conformity with the requirements of piggy-back rights granted under predecessor agreementsthe Securities Act and the rules and regulations of the U.S. Securities and Exchange Commission applicable thereto. Pledgor shall also cause the applicable Issuer to comply with the provisions of the "Blue Sky" law of any jurisdiction which the Secured Party shall designate in connection with any sale hereunder; and to cause such Issuer to make available to its security holders, providedas soon as practicable, an earnings statement (which need not be audited) covering a period of at least twelve months but not more than eighteen months, beginning with the first month after the effective date of any such registration statement, which earnings statement will satisfy the provisions of Section 11(a) of the Securities Act. Pledgor acknowledges that a breach of any of the covenants contained in this Section may cause irreparable injury to the Secured Party that the number of Registrable Securities shall not be cutback under any Secured Party will have no adequate remedy at law with respect to such Registration Statements breach and, as a result consequence, such covenants of such piggy-back rightsPledgor shall be specifically enforceable against Pledgor.
Appears in 1 contract
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an a selling stockholder resale offering to be made on a continuous basis pursuant to Rule 415. The Each Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purposein accordance herewith, subject to the provisions of Section 2(b)).. The Company shall cause each Registration Statement to become effective and remain effective as provided herein. The Company shall use its reasonable best efforts to cause the each Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the Effectiveness Date, and . The Company shall use its reasonable best commercial efforts to keep the each Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) five years after the Effective Date, all Registrable Securities covered by such Registration Statement have been sold or (ii) such time as all of the Registrable Securities have been publicly sold covered by the Purchaser, or (iii) such time as all of the Registrable Securities Registration Statement may be sold immediately without registration under the Securities Act and without volume restrictions pursuant to Rule 144(k) ), as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent and the affected Holders (the “each, an "Effectiveness Period”").
(b) If In the event that Form S-3 is not available for any reason the Commission does not permit all registration of the resale of the Registrable Securities hereunder, the Company shall (i) register the resale of the Registrable Securities on another appropriate form reasonably acceptable to be included in the Purchaser and undertake to register the Registrable Securities on Form S-3 as soon as such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included then in effect until such time as a Registration Statement filed under this Agreement, then on Form S-3 covering the Company shall prepare and file as soon as possible after Registrable Securities has been declared effective by the Commission.
(c) Within three business days of the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in declares effective any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereofStatement, the Company shall not be deemed cause its counsel to have satisfied this clause (i))issue a blanket opinion in the form attached hereto as Exhibit A, or (ii) a Registration Statement is not declared effective by to the Commission on or prior transfer agent stating that the Registrable Securities subject to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason are subject to an effective registration statement and can be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration reissued free of its Effectiveness Period, for an aggregate restrictive legend upon notice of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid a sale by the Purchaser pursuant to and confirmation by the Purchase Agreement from and including Purchaser that it has complied with the Event Date but excluding prospectus delivery requirements, provided that the date on which Company has not advised the Event transfer agent orally or in writing that the opinion has been curedwithdrawn. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence Copies of the Event Date and shall increase blanket opinion required by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder delivered to the Purchaser with respect to within the Primary Shares or Underlying Shares that are no longer Registrable Securitiestime frame set forth above.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Such Registration Statement shall be on Form S-3 contain (except if otherwise required pursuant to written comments received from the Company is not then eligible to register for resale Commission upon a review of such Registration Statement) the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent and the affected Holders (the “Effectiveness Period”"EFFECTIVENESS PERIOD").
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 S-2, SB-2, S-1 or S-3. In accordance with the time period prescrixxx xx xxx Xxxmission. Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Company is not then eligible to register for resale Commission upon a review of such Registration Statement) the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period. Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities for resale, but in no event more than thirty days after such date, the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be declared effective as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor.
(c) If: Except as noted in Section 2(b), i.e.:
(i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement covering the Common Stock in the Purchase Agreement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 30 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “Event"EVENT,” " and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 30 Trading Day Day-period is exceeded, being referred to as “Event Date”"EVENT DATE"), thenthen in addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.0% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder for Shares pursuant to the Purchase Agreement from Agreement; and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser y) on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 2.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement. The parties agree that the Company will not be liable for liquidated damages under this Section in respect of the Warrants and Warrant Shares. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 10% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy case of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a "SELLING HOLDER QUESTIONNAIRE"). The Company shall not be cutback required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under Section 2(c) to any such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully completed Selling Holder Questionnaire at least one Trading Day prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Samples: Registration Rights Agreement (Calypte Biomedical Corp)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement (except as provided in Section 2(b) and Section 2(d)) for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose)purpose reasonably acceptable to the Purchaser) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” in substantially the form attached hereto as Annex A, with such changes as may be requested by the Holders. The Company shall use its commercially reasonable best efforts to cause the each Registration Statement to be declared effective under the Securities Act as soon as possible after the respective dates of filing thereof, but, in any event, no later than the Effectiveness DateDate for such Registration Statement, and shall use its commercially reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date on which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Purchaser, or (iii) such time as all of the ceased to be Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”), subject to Section 6(d) hereof. It is agreed and understood that the Company shall, from time to time, be obligated to file one or more additional Registration Statements to cover any Registrable Securities which are not registered for resale pursuant to a pre-existing Registration Statement.
(b) If for any reason Notwithstanding anything contained herein to the contrary, including the fact that such Registrable Securities may be registered pursuant to the Registration Statement referred to in Section 2(d) below, in the event that the Commission does not permit all limits the amount of Registrable Securities that may be included and sold by Holders in any Registration Statement, including the Initial Registration Statement, pursuant to Rule 415 or any other basis, the Company may reduce the number of Registrable Securities included in such Registration Statement on behalf of the Holders (in proportion to the respective numbers of Registrable Securities represented by Shares held by such Holders ). In such event the Company shall give the Holders prompt notice of the number of the Registrable Securities to excluded and the Company will not be included in the Registration Statement filed pursuant to liable for any liquidated damages under Section 2(a2(c), or for any other reason any Registrable Securities are not included in a Registration Statement filed otherwise under this Agreement, then in connection with the excluded Registrable Securities. The Company shall prepare and file as soon as possible after use its commercially reasonable efforts at the date on which first opportunity that is permitted by the Commission shall indicate as to register for resale the Registrable Securities that were excluded from being the first date or time that registered on such filing may be made, but in any event by its Filing Date, an additional Registration Statement. Such new Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to shall be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose)purpose reasonably acceptable to the Purchaser) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” in substantially the form attached hereto as Annex A, with such changes as the Holders may request. The Company shall use its commercially reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible after the respective dates of filing thereof, but, in any event, no later than its the Effectiveness DateDate for such Registration Statement, and shall use its commercially reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period, subject to Section 6(d) hereof.
(c) IfExcept as provided in Section 2(b), if: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereofDate, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for an aggregate of more than 20 consecutive Trading Days for all such events or an aggregate of 50 Trading Days (which need not be consecutive) in any given 360-day period, (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) or the date on which such Event occurs, and for purposes of clause (iii) the date on which such 20 consecutive or 50 Trading Day Day-period (as applicable) is exceeded, being referred to as the “Event Date”), then, for so long in addition to any other rights available to the Holders: (x) on such Event Date the Company shall pay to each Holder an amount in cash, as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1% of the affected Registrable Securities aggregate purchase price paid by the Purchaser such Holder pursuant to the Purchase Agreement from for its Registrable Securities then held; and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser y) on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for its Registrable Securities then held; provided, that all periods shall be tolled, with respect to a Holder, by the number of Trading Days during which such Holder fails to provide the Company with information regarding such Holder which was reasonably requested by the Company in order to effect the registration of such Holder’s Registrable Securities pursuant to Section 6(e) hereof. The partial liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with In the requirements of piggy-back rights granted under predecessor agreements, provided, event that the number of Registrable Securities included in the Initial Registration Statement or any subsequent Registration Statement are reduced as provided in Section 2(b) above (such Registrable Securities, the “Reduction Securities”), the Company shall not be cutback under any prepare and file with the Commission a Registration Statement covering the resale of the Reduction Securities on Form S-1 (or another appropriate form for such purpose reasonably acceptable to the Purchaser). The Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statements Statement) the “Plan of Distribution” in substantially the form attached hereto as Annex A, with such changes as the Holders may request. The Company shall use its commercially reasonable efforts to cause such Registration Statement to be declared effective under the Securities Act as soon as possible after the date of filing thereof, but, in any event, no later than the Effectiveness Date for such Registration Statement, and shall use its commercially reasonable efforts to keep the Registration Statement continuously effective under the Securities Act for the Effectiveness Period, subject to Section 6(d) hereof. In the event that any Reduction Securities become registered pursuant to a result of Registration Statement on Form S-3 pursuant to Section 2(b) or otherwise, such piggy-back rightsReduction Securities may be removed from the Registration Statement on Form S-1 contemplated by this Section 2(d).
Appears in 1 contract
Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). ) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all expiration of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities Shares and Warrant Shares to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason (other than a Holder’s failure to comply with the requirements of Section 2(d) or 6(d)) any Registrable Securities are not then included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Datethe 30th day following such date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” substantially in the form attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its the Effectiveness DateDate for such Registration Statement, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for an aggregate of more than 20 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 Trading Day Day-period is exceeded, being referred to as “Event Date”), then, for so long in addition to any other rights available to the Holders under the Transaction Documents or under applicable law, at the option of each Holder, commencing on the date after the Event Date, the Company shall pay to each Holder an amount in cash, as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to .0003333 of the affected Registrable Securities Investment Amount paid by the Purchaser pursuant to such Investor under the Purchase Agreement from and including for each day up through the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate second monthly anniversary of 0.50% per annum during the 90-day period immediately following the occurrence of the such Event Date and shall increase by 0.50% per annum at then .0006666 of the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured Investment Amount paid by such date) Investor under the Purchase Agreement for each day thereafter until the applicable Event is cured. The liquidated damages referred to in the previous sentence shall be payable every four weeks, beginning on the date which is four weeks from the Event Date. If the Company fails to pay any liquidated damages pursuant to this Section in full within seven days after the terms hereof shall apply on date payable, the Company will pay interest thereon at a pro rata basis for any portion rate of a month prior 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the cure of an Event other than with respect to Holder, accruing daily from the initial Event Date thereof. Following the cure of all Events, the accrual of date such liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoingare due until such amounts, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that plus all such interest thereon, are no longer Registrable Securitiespaid in full.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under any Section 2(c) hereof to such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully completed Selling Holder Questionnaire at least one Trading Day prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Samples: Registration Rights Agreement (Vineyard National Bancorp)
Registration. (a) On or prior to As soon as reasonably practicable, but in no event later than the Filing Date, the Company shall prepare and file with the Commission a Registration Statement on Form S-1 covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 contain (except if otherwise required pursuant to written comments received from the Company is not then eligible to register for resale Commission upon a review of such Registration Statement) the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act as soon as practicable but, in any event, no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as when all of the Registrable Securities covered by the Registration Statement have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold without volume restrictions pursuant to Rule 144(k144(b)(i) promulgated under the Securities Act (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not permitted by the Commission to be included in on a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis at the market pursuant to Rule 415, on Form S-3 415 or otherwise as may be acceptable to a Holder whose Registrable Securities were not registered for resale. Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Company is not then eligible to register for resale Commission upon a review of such Registration Statement) the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) If at any time during the Effectiveness Period, less than 95% of the then Registrable Securities are then registered on a Registration Statement(s), then the Company shall file as soon as reasonably practicable, but in any event not later than 30 days after less than 95% of the Registrable Securities are then registered on a Registration Statement, subject to any restrictions imposed by Rule 415, an additional Registration Statement covering the resale by the Holders of not less than 100% of the number of then Registrable Securities. The calculation set forth in the foregoing sentence shall be made without regard to any limitation on the exercise of the Warrants and such calculation shall assume that the Warrants are then exercisable for shares of Common Stock at the then prevailing applicable Exercise Price (as defined in the Warrants).
(d) If: (i) a Registration Statement covering all of the Registrable Securities required to be covered thereby is not filed by the Company with the Commission on or prior to its the Filing Date (or the applicable filing date if the Company files a Registration Statement without affording is not the Purchaser the opportunity initial Registration Statement required to review and comment on the same as required by be filed under Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i2(a)), or (ii) a Registration Statement covering all of the Registrable Securities is not declared effective by the Commission on or prior to its required Effectiveness DateDate (it being understood that if the Company shall not have filed a “final” prospectus for the Registration Statement with the SEC under Rule 424(b) in accordance with Section 2(g) below (whether or not such a prospectus is technically required by such rule), or the Company shall not be deemed to have satisfied this clause (ii)), (iii) the Company fails to file a request for the acceleration of the Effectiveness Date of the applicable Registration Statement as required by Section 3(c), (iv) there is a suspension or delisting of the Company’s Common Stock (or the Company fails to timely list all the Registrable Securities) on its principal trading market or exchange, (v) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(cduring an Allowable Grace Period (as defined below), such Registration Statement ceases for any reason to be effective and available to for use by the Purchaser Holders as to all any Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for an aggregate of up to no more than 3 consecutive Trading Days (or 20 Trading Days for all such events in any 12 month period in the aggregate) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) i)-(iv), on the date on which such Event occurs, or for purposes of clause (iii) v), the date on which such 20 Trading Day the Allowable Grace Period or other specified period is exceeded, being referred to as “Event Date”), then, for so long in addition to any other rights available to the Holders under this Agreement or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as such event is within the Effectiveness Periodpartial damages and not as a penalty, liquidated damages will accrue based on the Purchase Price equal to 1.5% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder pursuant to the Purchase Agreement from Agreement; and including the Event Date but excluding the date (y) on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90each 30-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial damages and not as a penalty, equal to 1.5% of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement. The liquidated partial damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, in no liquidated event shall the partial damages will accrue hereunder under this Section 2(d) exceed an amount equal to 20% of the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiesaggregate Investment Amounts.
(de) Notwithstanding anything to the contrary contained in this Agreement, in the event the staff of the Commission (the “Staff”) or the Commission seeks to characterize any offering pursuant to a Registration Statements under Statement filed pursuant to this Section 2 Agreement as constituting an offering of securities by or on behalf of the Company, or in any other manner, such that the Staff or the Commission do not permit such Registration Statement to become effective and used for resales in a manner that does not constitute such an offering and that permits the continuous resale at the market by the Holders participating therein (or as otherwise may contain be acceptable to each Holder) without being named therein as an “underwriter,” then the Company shall reduce the number of shares other than Registrable Securities to be included in accordance with such Registration Statement by all Holders until such time as the requirements Staff and the Commission shall so permit such Registration Statement to become effective as aforesaid. In making such reduction, the Company shall reduce the number of piggy-back rights granted under predecessor agreements, provided, that shares to be included by all Holders on a pro rata basis (based upon the number of Registrable Securities otherwise required to be included for each Holder) unless the inclusion of shares by a particular Holder or a particular set of Holders are resulting in the Staff or the Commission’s “by or on behalf of the Company” offering position, in which event the shares held by such Holder or set of Holders shall not be cutback the only shares subject to reduction (and if by a set of Holders on a pro rata basis by such Holders or on such other basis as would result in the exclusion of the least number of shares by all such Holders). In addition, in the event that the Staff or the Commission requires any Holder seeking to sell securities under any a Registration Statement filed pursuant to this Agreement to be specifically identified as an “underwriter” in order to permit such Registration Statements Statement to become effective, and such Holder does not consent to being so named as an underwriter in such Registration Statement, then in each such case, the Company shall reduce the total number of Registrable Securities to be registered on behalf of such Holder, until such time as the Staff or the Commission does not require such identification or until such Holder accepts such identification and the manner thereof. Any reduction pursuant to this paragraph will first reduce all Registrable Securities other than those issued pursuant to the Purchase Agreement and in the event of any reduction pursuant to this paragraph, no Holder shall have any claim against the Company as a result of such piggyreduction and any Event or other delay or breach of this Agreement occurring primarily due to such action by the Staff or the Commission and any such relating reduction shall not require the Company to pay any partial damages pursuant to Section 2(d) hereof or otherwise provide the basis for any claim by any Holder against the Company pursuant to the Transaction Documents (it being understood that the foregoing does not constitute a waiver of Section 3.2(f) of the Securities Purchase Agreement by any Holder or the obligations of the Company under this paragraph and elsewhere in relation thereto). In the event of any reduction in Registrable Securities pursuant to this paragraph, an affected Holder shall have the right to require, upon delivery of a written request to the Company signed by the Holder, the Company to file a registration statement within 30 days of such request (subject to any restrictions imposed by Rule 415 or required by the Staff or the Commission) for re-back rightssale by such Holder in a manner acceptable to such Holder, and the Company shall following such request cause to be and keep effective such registration statement in the same manner as otherwise contemplated in this Agreement for registration statements hereunder, in each case until such time as: (i) all Registrable Securities held by such Holder have been registered pursuant to an effective Registration Statement in a manner acceptable to such Holder or (ii) the Registrable Securities may be resold by such Holder without restriction (including volume limitations) pursuant to Rule 144(b)(i) of the Securities Act (taking account of any Staff position with respect to “affiliate” status) or (iii) the Holder agrees to be named as an underwriter in any such Registration Statement in a manner acceptable to Holder as to all Registrable Securities held by such Holder and that have not theretofore been included in a Registration Statement under this Agreement (it being understood that the special demand right under this sentence may be exercised by a Holder multiple times and with respect to limited amounts of Registrable Securities in order to permit the re-sale thereof by such Holder as contemplated above).
(f) In the event that Form S-1 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall use reasonable best efforts to (i) register the resale of the Registrable Securities on another appropriate form reasonably acceptable to the Holders and (ii) undertake to register the Registrable Securities on Form S-1 as soon as such form is available, provided that the Company shall use reasonable best efforts to maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-1 covering the Registrable Securities has been declared effective by the Commission. In the event the Company becomes eligible to register the Registrable Securities on Form S-3, the Company shall use reasonable best efforts to promptly register the Registrable Securities on Form S-3, provided that the Company shall use reasonable best efforts to maintain the effectiveness of the Registration Statement(s) then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(g) By 5:30 p.m. on the Trading Day immediately following the Effective Date of each Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Health Benefits Direct Corp)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an a selling stockholder resale offering to be made on a continuous basis pursuant to Rule 415. The Each Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purposein accordance herewith). The Company shall cause each Registration Statement to become effective and remain effective as provided herein. The Company shall use its reasonable best commercial efforts to cause the each Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the Effectiveness Date, and . The Company shall use its reasonable best commercial efforts to keep the each Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) five years after the Effective Date, all Registrable Securities covered by such Registration Statement have been sold or (ii) such time as all of the Registrable Securities have been publicly sold covered by the Purchaser, or (iii) such time as all of the Registrable Securities Registration Statement may be sold immediately without registration under the Securities Act and without volume restrictions pursuant to Rule 144(k) ), as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (the each, an “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a any Registration Statement is not filed on or prior to its the applicable Filing Date (if the Company files a for such Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or Statement; (ii) a Registration Statement filed hereunder is not declared effective by the Commission on or prior to its required by the applicable Effectiveness Date, or ; (iii) after its Effective Datea Registration Statement is filed with and declared effective by the Commission, without regard for the reason thereunder a Discontinuation Event (as hereafter defined) shall occur and be continuing, or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser (by suspension or otherwise) as to all Registrable Securities to which it is required to cover relate at any time prior to the expiration of its the Effectiveness PeriodPeriod applicable to such Registration Statement (without being succeeded immediately by an additional Registration Statement filed and declared effective), for an a period of time which shall exceed 30 days in the aggregate per year or more than 20 consecutive calendar days (defined as a period of 20 365 days commencing on the date such Registration Statement is declared effective); or (iv) the Common Stock is not listed or quoted, or is suspended from trading on any Trading Market for a period of three (3) consecutive Trading Days for all (provided the Company shall not have been able to cure such events trading suspension within 30 days of the notice thereof or list the Common Stock on another Trading Market); (any such failure or breach being referred to as an “Event,” and for purposes of clauses clause (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date which such 30 day or 20 consecutive day period (as the case may be) is exceeded, or for purposes of clause (iv) the date on which such 20 three (3) Trading Day period is exceeded, being referred to as “Event Date”), thenthen as partial relief for the damages to the Purchaser by reason of the occurrence of any such Event (which remedy shall not be exclusive of any other remedies available at law or in equity), the Company shall pay to the Purchaser, as liquidated damages and not as a penalty, for so long as such event each day that an Event has occurred and is within the Effectiveness Periodcontinuing, liquidated damages will accrue based on the Purchase Price an amount in cash equal to one-thirtieth (1/30th) of the affected Registrable Securities paid product of (A) the original aggregate principal amount of the Convertible Notes multiplied by (B) the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been curedApplicable Percentage (as hereafter defined). For so long as purposes hereof, the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during term “Applicable Percentage” means (i) for the 90-first thirty (30) day period immediately following the occurrence and during the continuance of such Event, one percent (1%), (ii) for the Event Date second thirty (30) day period following the occurrence and during the continuance of such Event, one and one-half percent (1.5%) and (iii) thereafter, two percent (2%). In the event the Company fails to make any payments pursuant to this Section 2(b) in a timely manner, such payments shall increase by 0.50bear interest at the rate of 1.5% per annum at the end of each subsequent 90-day period, but month (prorated for partial months) until paid in no event shall such rate exceed 1.00% per annumfull. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), Notwithstanding anything to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Eventscontrary set forth herein, the accrual maximum aggregate amount of liquidated damages shall cease. The liquidated damages under that may be charged to the Company pursuant to this Section 2(c2(b) shall be the sole and exclusive remedy not exceed 24% of the Purchaser under this Agreement for an Event. Notwithstanding original aggregate principal amount of the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable SecuritiesConvertible Notes.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Samples: Registration Rights Agreement (American Technologies Group Inc)
Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3SB-2, in which case such registration shall be on another appropriate form for such purpose). ) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five two years after the Effective Date, (ii) at such time as all of the Registrable Securities have been publicly sold by the PurchaserHolders, or (iii) at such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities Shares to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Datethe 30th calendar day following such date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 S-B2 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3S-B2, in which case such registration shall be on another appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” substantially in the form attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its the 90th calendar day following the date on which the Company becomes aware that such Registration Statement is required under this Agreement (each such 90th calendar day, the “Effectiveness Date” for such Registration Statement), and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for an aggregate of more than an aggregate of 20 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 Trading Day Day-period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant in addition to any other rights available to the Purchase Agreement from and including Holders under the Event Date but excluding the date Transaction Documents or under applicable law on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the each such Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to 2% of the Subscription Price paid by each Holder for each 30 day period that the Company has failed to comply with its obligations set forth herein. If the Company fails to pay any liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under any Section 2(c) hereof to such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully completed Selling Holder Questionnaire at least one Trading Day prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Samples: Registration Rights Agreement (Great American Family Parks Inc)
Registration. (a) On or prior Within 30 days of the date of the final closing under the equity financing currently being conducted by the Company (which is currently set to occur on April 6, 2007 but may be extended in the Filing Datesole discretion of the Company’s Board of Directors), the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be , on Form S-3 S-1 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its commercially reasonable best efforts to cause the such Registration Statement to be declared effective under the Securities Act no later than the Effectiveness Date, as soon as possible and shall use its commercially reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserXxxxxx, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by Xxxxxx pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent and Xxxxxx (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 S-1 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its commercially reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its commercially reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) Xxxxxx agrees to furnish to the Company a completed Questionnaire in the form attached to this Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be required to include the Registrable Securities of Xxxxxx in a Registration Statement if Xxxxxx fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the filing of the applicable Registration Statement. Xxxxxx acknowledges that the Company may, in its sole discretion, include shares of capital stock held by other selling stockholders on any Registration Statement covering the resale of the Registrable Securities.
(d) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereofJune 1, the Company shall not be deemed to have satisfied this clause (i))2007, or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness DateAugust 15, 2007, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and and/or available to the Purchaser Xxxxxx as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 60 Trading Days for all such events (which need not be consecutive) in any twelve (12) month period (any such failure or breach being referred to as an “Event,” ”, and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 60 Trading Day period is exceeded, being referred to as “Event Date”), thenthen (x) on each such Event Date the Company shall pay to Xxxxxx an amount in cash, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based and not as a penalty, equal to 1.5% of the value of the Shares on the Purchase Price date of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from this Agreement; and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser y) on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to Xxxxxx an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.5% of the value of the Shares on the date of this Agreement; provided, however, in no event shall the Company pay any amounts hereunder in excess of twelve percent (12%) of the value of the Shares on the date of this Agreement. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 10% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to Xxxxxx, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event, except in the case of the first Event other than with respect to the initial Event Date thereofDate. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) Such payments shall be the Xxxxxx’x sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiessuch events.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be , on Form S-3 S-1 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 S-1 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities for resale, the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be declared effective as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor. Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall cause such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period.
(d) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 40 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 40 Trading Day Day-period is exceeded, being referred to as “Event Date”), thenthen in addition to any other rights the Holders may have hereunder or under applicable law: on each such Event Date, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement. The parties agree that the Company will not be liable for liquidated damages under this Section in respect of the Warrants. The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy case of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(de) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under Section 2(d) to any such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Samples: Securities Purchase Agreement (Flow International Corp)
Registration. (a) On Parent shall use its reasonable best efforts to cause a registration statement on Form S-3 (the “S-3 Registration Statement”) to become effective or prior to be declared effective by the Filing DateSEC within ninety (90) calendar days of the Closing Date (such date, the Company shall prepare and file “Effectiveness Deadline”) for the resale from time to time by holders of all MDRX Common Stock issued pursuant to this Agreement that comprises the Stock Consideration (the “Registrable Shares”) in accordance with the Commission intended method of distribution thereof as shall be consented to by Parent and by the Seller Representative on behalf of the holders of the Registrable Shares (which, for purposes of this Section 7.7, shall mean to include the Paying Agent and are collectively referred to as the “Holders” and each a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415“Holder”). The S-3 Registration Statement shall be on Form S-3 (except if or shall have been filed with the Company is not then eligible SEC in accordance with and pursuant to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose)Act. The Company Parent shall use its reasonable best efforts to cause the S-3 Registration Statement to be declared remain effective under the Securities Act no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the such date which as is the earlier of (i) five years after the Effective Date, date on which all Registrable Shares included in the S-3 Registration Statement shall have been sold; or (ii) such time as the date on which all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities Shares may be sold during any ninety (90) day period without any restriction pursuant to Rule 144(k) (144 under the “Effectiveness Period”)Securities Act.
(b) If for any reason It shall be a condition precedent to the Commission does not permit obligations of Parent under this section that all of Holders shall furnish to the Parent such information regarding themselves, the Registrable Securities to be included in Shares held by them and the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file intended method of disposition of such securities as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts required to cause each such Registration Statement to be declared effective under effect the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Periodregistration.
(c) If: (i) a Registration Statement is not filed on All expenses incurred by Parent and its Subsidiaries or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), Affiliates in connection with their performance of their obligations under or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with this Section 6(c), such 7.7 shall be borne by Parent or its Subsidiaries and Affiliates. All selling and other expenses (including attorney fees) incurred by the Holders in connection with sales of Registrable Shares under the S-3 Registration Statement ceases for any reason to shall be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid borne by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable SecuritiesHolders.
(d) Parent agrees to indemnify and hold harmless each Holder, its directors, officers and each Person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) such holder, from and against any and all Damages actually incurred in connection with investigating or defending any matter, including any action that could reasonably be expected give rise to any such losses, claims, damages, liabilities or expenses) caused by any untrue statement or alleged untrue statement of a material fact contained in the S-3 Registration Statements Statement, related preliminary prospectus or prospectus (or any amendment or supplement thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a preliminary prospectus or prospectus, in the light of the circumstances under which they were made) not misleading, except insofar as such Damages are caused by an untrue statement or omission or alleged untrue statement or omission that is based upon information relating to any of the Holders furnished in writing to Buyer or Parent by or on behalf of any of the Holders.
(e) Provided that such Holder is not entitled to indemnification pursuant to Section 7.7(d) above with respect to such matter, each Holder (severally and not jointly) agrees to indemnify and hold harmless Parent, Buyer and the directors, officers and each Person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) Parent or Buyer, from and against any and all Damages actually incurred in connection with investigating or defending any matter, including any action that could reasonably be expected give rise to any such losses, claims, damages, liabilities or expenses) caused by any untrue statement or alleged untrue statement of a material fact regarding such Holder and provided in writing by or on behalf of such Holder which is contained in the S-3 Registration Statement, related preliminary prospectus or prospectus (or any amendment or supplement thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a preliminary prospectus or prospectus, in the light of the circumstances under which they were made) not misleading, in each case to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the S-3 Registration Statement, preliminary prospectus or prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished by or on behalf of such Holder for use in connection with the S-3 Registration Statement.
(f) Sellers acknowledge that pending registration of the Registrable Shares as contemplated by this Section 2 may contain shares other than 7.7, and subject to the restrictions applicable during the Lock-Up Period, the Registrable Securities Shares shall bear customary restrictive legends in accordance with applicable securities laws and as set forth in the requirements Paying Agent Agreement.
(g) Notwithstanding anything in this Section 7.7 to the contrary, by delivery of piggy-back rights granted written notice to the Paying Agent, Parent may require the Holders to refrain from the offering or selling of Registrable Shares under predecessor agreements, provided, the S-3 Registration Statement (i) if Parent determines in good faith that the number S-3 Registration Statement or related prospectus contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) during Parent’s regular black-out periods in connection with its quarterly earnings releases in accordance with Parent’s policy (as may be amended from time to time). In either case, each Holder shall forthwith discontinue the offer and sale of Registrable Securities Shares until the Paying Agent has been advised in writing by the Parent or Buyer that the use of the prospectus may be resumed. Any such notice shall not be cutback under treated as confidential by the Holders and subject to the confidentiality provisions set forth in Section 7.3.
(h) The provisions of this Section 7.7 shall inure to the benefit of and be binding upon the successors and assigns of each of the Holders, including, and without the need for an express assignment, subsequent Holders (except with respect to any Registrable Shares that have been registered as contemplated by this Section 7.7 or otherwise and are subsequently sold or otherwise disposed of or transferred). The Holders shall be third party beneficiaries to this Section 7.7, and shall have the right to enforce the provisions of this Section 7.7 directly to the extent they may deem such Registration Statements as a result of enforcement necessary or advisable to protect such piggy-back rightsHolders’ rights hereunder.
Appears in 1 contract
Samples: Share Purchase Agreement (Allscripts Healthcare Solutions, Inc.)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement Statement, for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be , on Form S-3 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the such Registration Statement to be declared effective under the Securities Act as soon as possible (including filing with the Commission a request for acceleration of effectiveness in accordance with Rule 461 promulgated under the Securities Act within five (5) Business Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission that a Registration Statement will not be “reviewed,” or not be subject to further review) but, in any event, no later than the its Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five eight years after the its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (the “Effectiveness PeriodEFFECTIVENESS PERIOD”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible (including filing with the Commission a request for acceleration of effectiveness in accordance with Rule 461 promulgated under the Securities Act within five (5) Business Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission that a Registration Statement will not be “reviewed,” or not be subject to further review) but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) If: Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities for resale, the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be declared effective as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor. Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall cause such Registration Statement to be declared effective under the Securities Act as soon as possible (including filing with the Commission a request for acceleration of effectiveness in accordance with Rule 461 promulgated under the Securities Act within five (5) Business Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission that a Registration Statement will not be “reviewed,” or not be subject to further review) but, in any event, by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period.
(d) In the event the Vizer \ Avurt Merger and, if necessary, the terms of the funding in excess of 19.9% of the Company’s equity as described in the Offering Memorandum have not been approved by the Company’s shareholders by November 30, 2006, Investors holding at least 50% of the minimum funding amount (following the closing of the minimum funding amount pursuant to the Offering Memorandum) may demand, on behalf of all Investors who participated in the Offering and who have not opted out of being included in the Registration Statement, that the Company prepare and file by the Filing Date for such Registration Statement, a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form SB-2 (or on such other form appropriate for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall cause such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period.
(e) If (i) a Registration Statement is not filed on or prior to its Filing Date Date, (if the Company files ii) with respect to a Registration Statement without affording the Purchaser the opportunity required to review and comment on the same as required by Section 3(abe filed pursuant to Sections 2(a) hereofor 2(b), the Company shall not be deemed Effective Date of the Registration Statement is later than 180 days after the Closing Date, (iii) with respect to have satisfied this clause (i)), or (ii) a Registration Statement required to be filed pursuant to Section 2(c), the Effective Date of the Registration Statement is not declared effective by later than 180 days after the Commission Company becomes eligible to use a registration statement on or prior Form S-3 to its required Effectiveness Date, register the Registrable Securities for resale or (iiiiv) after its Effective Date, without regard for the reason thereunder or efforts therefor other than with respect to a Suspension Event in compliance with Registration Statement required to be filed pursuant to Section 6(c2(d), such the Effective Date of the Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Periodlater than March 31, for an aggregate of 20 Trading Days for all such events 2007 (any such failure or breach being referred to as an “Event,EVENT” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceededEvent occurs, being referred to as the “Event DateEVENT DATE”), thenthen in addition to any other rights the Holders may have hereunder or under applicable law, for so long the Company shall pay to the Holders, as liquidated damages and not as a penalty, a fee (payable in cash) equal to the product of (w) 2%, multiplied by (x) the number of months, or portion thereof that the Filing Date or the Effective Date is delayed (but not to exceed five months), multiplied by (y) the number of Units that the Registrable Securities owned by the Holder comprised, and multiplied by (z) the Unit Price; provided that with respect to Note Units such event damages shall equal the product of (w) 2%, multiplied by (x) the number of months, or portion thereof that the Filing Date or the Effective Date is delayed (but not to exceed five months), multiplied by (y) the principal amount of notes contained within the Effectiveness Period, liquidated damages Note Units that the Registrable Securities owned by the Holder comprised. In no event will accrue based on the Purchase Price aggregate fee payable by the Company under this Section 2(e) exceed 10% of the affected Registrable Securities purchase price paid by the Purchaser Holders for the Units pursuant to the Purchase Subscription Agreements.
(f) Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Agreement from as Annex B (a “SELLING HOLDER QUESTIONNAIRE”). The Company shall not be required to include the Registrable Securities of a Holder in a Registration Statement and including shall not be required to pay any damages under Section 2(e) to any Holder who fails to furnish to the Event Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date but excluding (subject to the date on which the Event has been cured. requirements set forth in Section 3(a)).
(g) For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence purposes of the Event Date and shall increase by 0.50% per annum at obligations of the end of each subsequent 90-day periodCompany under this Agreement, but in no event shall such rate exceed 1.00% per annum. The liquidated damages Registration Statement shall be due considered “effective” with respect to any Registrable Securities unless such Registration Statement lists the Holders of such Registrable Securities as “Selling Stockholders” and payable in cash or through the issuance of Additional Notes (includes such other information as defined in the Note)is required to be disclosed with respect to such Holders to permit them to sell their Registrable Securities pursuant to such Registration Statement. Such Registration Statement also shall cover, to the Purchaser on each monthly anniversary extent allowable under the Securities Act and the Rules promulgated thereunder (including Securities Act Rule 416), such indeterminate number of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion additional shares of a month prior to the cure of an Event other than Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the offering and resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, or if Rule 415 is not available for offers or sales of the Registrable Securities, for such other means of distribution of Registrable Securities as the Holders may specify. The Registration Statement required hereunder shall be on Form S-3 or Form F-3, as applicable (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3S-3 or Form F-3, in which case such registration the Registration shall be on Form S-1 or F-1 or another appropriate form for such purposeas shall be selected by the Company upon advice of its counsel). The Registration Statement required hereunder shall contain (except if otherwise directed by the Holders) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but no later than 120 days following the Effectiveness Datefiling thereof, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(cincluding the filing of any necessary amendments, post-effective amendments and supplements) If: until the date which is two years after the Closing Date or such later date when all Registrable Securities covered by the Registration Statement (i) a have been sold pursuant to the Registration Statement is not filed on or prior to its Filing Date (if an exemption from the Company files a Registration Statement without affording registration requirements of the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), Securities Act or (ii) may be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent and the affected Holders (the “Effectiveness Period”). If Rule 415 is not available and the Holder shall specify that the Registration Statement is not declared effective by relate to an underwritten offering, then the Commission on or prior to its required Effectiveness DateCompany shall, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day periodunderwriter’s request, but direct its Chief Executive Officer and Chief Financial Officer to participate in no event shall such rate exceed 1.00% per annum. The liquidated damages one or more “road show” presentations, which presentations shall be due and payable in cash or through conducted at the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable SecuritiesCompany’s expense.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Registration. (a) On or prior to the its applicable Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities (including Contingent Payment Stock, whether or not such Contingent Payment Stock is then issuable) not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Each Registration Statement required to be filed under this Agreement shall be filed on Form S-3 S-1 (except or if the Company is not then eligible to register for resale utilize Form S-3 promulgated under the Registrable Securities Act, on Form S-3, in which case or if another form of registration is required, it shall utilize such registration shall be on another other available form appropriate form for such purpose). ) and contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement, other than as to the characterization of any Holder as an underwriter, which shall not occur without such Holder’s written consent) a “Plan of Distribution” section in substantially the form attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the each Registration Statement required to be declared effective under the Securities Act no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement Agreement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep each such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period. By 5:00 p.m. (New York City time) on the business day immediately following the Effective Date of each Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(b) If for any reason a Registration Statement is effective but not all outstanding Registrable Securities are registered for resale pursuant thereto, then the Company shall prepare and file by the applicable Filing Date an additional Registration Statement to register the resale of all such unregistered Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415.
(c) If: (i) a Registration Statement is not filed on or prior Each Holder agrees to its Filing Date (if furnish to the Company files a Registration Statement without affording completed Questionnaire in substantially the Purchaser the opportunity form attached to review and comment on the same this Agreement as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause Annex B (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event DateSelling Holder Questionnaire”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the Commission an Exchange Act Registration Statement to register its common stock under the Exchange Act. The Company shall use its commercially reasonable efforts to cause the Exchange Act Registration Statement to be declared effective by the Commission no later than the Exchange Act Effectiveness Date.
(b) The Company shall use its commercially reasonable efforts to prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement Statement, for an offering to be made on a continuous basis pursuant to Rule 415. The Such Registration Statement shall be on Form S-3 contain (except if otherwise required pursuant to written comments received from the Company is not then eligible to register for resale Commission upon a review of such Registration Statement) the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). “Plan of Distribution” attached hereto as Annex A. The Company shall use its commercially reasonable best efforts to cause the such Registration Statement to be declared effective under by the Securities Act Commission no later than the Securities Act Effectiveness Date, and shall use its commercially reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five three years after the its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company (the “Effectiveness Period”).
(bc) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a2(b), or for any other reason any outstanding Registrable Securities are not included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 . Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Company is not then eligible to register for resale Commission upon a review of such Registration Statement) the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). “Plan of Distribution” attached hereto as Annex A. The Company shall use its commercially reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its commercially reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire the Effectiveness Period.
(cd) If: (i) a If the Exchange Act Registration Statement is not filed on or prior to its the Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceededEvent occurs, being referred to as the “Event Date”), then, for so long in addition to any other rights the Holders may have hereunder or under applicable law, the Company shall pay to each Holder, as such event is within the Effectiveness Period, liquidated damages and not as a penalty, a fee (payable in cash) equal to the product of (w) 1.5%, multiplied by (x) the number of months, or portion thereof that the Filing Date is delayed, multiplied by (y) the number of shares of Series A Preferred held by such Holder, multiplied by (z) $9,000.00. Notwithstanding the previous sentence, in no event will accrue based on the Purchase Price aggregate fee payable by the Company under this Section 2(d) exceed 8% of the affected Registrable Securities aggregate purchase price paid by all purchasers of the Purchaser Stock and Warrants in all Closings pursuant to the Stock Purchase Agreement.
(e) Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at Annex B (a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum“Selling Holder Questionnaire”). The liquidated damages Company shall not be due and payable required to include in cash or through a Registration Statement the issuance Registrable Securities of Additional Notes (as defined in the Note), any Holder who fails to furnish to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on Company a pro rata basis for any portion of a month fully completed Selling Holder Questionnaire at least two Trading Days prior to the cure of an Event other than with respect Filing Date (subject to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this requirements set forth in Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities3(a)).
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Registration. (a) On or prior Subject to the Filing Dateother applicable provisions of this Agreement, the Company shall prepare file, as promptly as reasonably practicable, but no later than the applicable Filing Deadline, (i) the Prospectus Supplement, if permitted by applicable law and file with the Commission Company determines that registration through a Registration Statement Prospectus Supplement is appropriate in light of the possible termination of WKSI status as of the next determination date under Rule 405 of the 1933 Act, or (ii) a registration statement under the 1933 Act covering the resale of all Registrable Securities not already covered sale or distribution from time to time by an existing and effective Registration Statement for an offering to be made the Investors, on a delayed or continuous basis pursuant to Rule 415415 of the 1933 Act of all the Registrable Securities and shall provide for the registration of such Registrable Securities for resale by such Investors in accordance with any reasonable method of distribution elected by the Investors (such registration, a “Resale Shelf Registration”). The Registration Statement registration statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case then such registration shall be on another appropriate form for such purposepurposes) (the “Resale Shelf Registration Statement”), and if the Company is a WKSI as of the filing date and determines to file a Prospectus Supplement as provided in (a)(i) above, the Resale Shelf Registration Statement shall be an Automatic Shelf Registration Statement. The If the Resale Shelf Registration Statement is not an Automatic Shelf Registration Statement, then the Company shall use its reasonable best efforts to cause the such Resale Shelf Registration Statement to be declared effective under by the Securities Act no later than Commission as promptly as practicable after the filing thereof, but in any event prior to the Effectiveness DateDeadline.
(b) Once declared effective, and shall the Company shall, subject to the other applicable provisions of this Agreement, use its reasonable best efforts to keep cause the Resale Shelf Registration Statement to be continuously effective under the and usable until such time as there are no longer any Registrable Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) or at such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) are Freely Tradeable (the “Effectiveness Period”).
(bc) If any Shelf Registration ceases to be effective under the 1933 Act for any reason at any time during the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a)Effectiveness Period, or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare use its reasonable best efforts to promptly cause such Shelf Registration to again become effective under the 1933 Act (including obtaining the prompt withdrawal of any order suspending the effectiveness of such Shelf Registration), and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Dateshall, promptly amend such Shelf Registration in a manner reasonably expected to obtain the withdrawal of any order suspending the effectiveness of such Shelf Registration or file an additional registration statement (a “Subsequent Shelf Registration Statement covering the resale of all Registrable Securities not already covered by an existing Statement,” and effective Registration Statement such registration, a “Subsequent Shelf Registration”) for an offering to be made on a delayed or continuous basis pursuant to Rule 415, on Form S-3 (except if 415 of the Company is not then eligible 1933 Act registering the resale from time to register for resale time by the Investors of all securities that are Registrable Securities on Form S-3as of the time of such filing. If a Subsequent Shelf Registration is filed, in which case such registration shall be on another appropriate form for such purpose). The the Company shall use its reasonable best efforts to (i) cause each such Subsequent Shelf Registration Statement to be declared become effective under the Securities 1933 Act as soon promptly as possible butis reasonably practicable after such filing, but in any event, no event later than its the date that is ninety (90) days after such Subsequent Shelf Registration is filed and (ii) keep such Subsequent Shelf Registration (or another Subsequent Shelf Registration) continuously effective until the end of the Effectiveness DatePeriod. Any such Subsequent Shelf Registration shall be a registration statement on Form S-3 to the extent that the Company is eligible to use such form, and if the Company is a WKSI as of the filing date, such registration statement shall be an Automatic Shelf Registration Statement. Otherwise, such Subsequent Shelf Registration shall be on another appropriate form and shall provide for the registration of such Registrable Securities for resale by such Investors in accordance with any reasonable method of distribution elected by the Investors.
(d) The Company shall supplement and amend any Shelf Registration if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration if required by the 1933 Act or as reasonably requested by the Investors covered by such Shelf Registration.
(e) If a Person becomes an Investor of Registrable Securities after a Shelf Registration becomes effective under the 1933 Act, the Company shall, as promptly as is reasonably practicable following delivery of written notice to the Company of such Person becoming an Investor and requesting for its name to be included as a selling securityholder in the prospectus related to the Shelf Registration:
(i) if required and permitted by applicable law, file with the Commission a supplement to the related prospectus or a post-effective amendment to the Shelf Registration so that such Investor is named as a selling securityholder in the Shelf Registration and the related prospectus in such a manner as to permit such Investor to deliver a prospectus to purchasers of the Registrable Securities in accordance with applicable law;
(ii) if, pursuant to Section 2(e)(i), the Company shall have filed a post-effective amendment to the Shelf Registration that is not automatically effective, use its reasonable best efforts to keep cause such Registration Statement continuously post-effective amendment to become effective under the Securities 1933 Act during its entire Effectiveness Periodas promptly as is reasonably practicable, but in any event by the date that is ninety (90) days after the date such post-effective amendment is required by Section 2(e)(i) to be filed; and
(iii) notify such Investor as promptly as is reasonably practicable after the effectiveness under the 1933 Act of any post-effective amendment filed pursuant to Section 2(e)(i).
(cf) If: (i) a the Prospectus Supplement or Resale Shelf Registration Statement is not filed with the Commission on or prior to its the applicable Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereofDeadline, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a the Resale Shelf Registration Statement is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to its required the Effectiveness DateDeadline, or (iii) after its Effective Date, without regard effective date and except for the reason thereunder or efforts therefor other than a Suspension Event reasons as set forth in compliance with Section 6(c)4, such (A) the Resale Shelf Registration Statement or Existing Shelf Registration Statement, as applicable, ceases for any reason (including, without limitation, by reason of a stop order or the Company’s failure to be update such registration statement), to remain continuously effective and available to the Purchaser as to all Registrable Securities included in such registration statement or (B) the Investors are not permitted to which it is required utilize the prospectus therein to cover at resell such Registrable Securities for any time prior reason (other than due to a change in the expiration “Plan of its Effectiveness PeriodDistribution” or the inaccuracy of any information regarding the Investors), in each case, for more than an aggregate of 20 Trading Days for all such events 30 consecutive calendar days or 45 calendar days (which need not be consecutive days) during any 12-month period (other than as a result of a breach of this Agreement by an Investor) (any such failure or breach in clauses (i) through (iii) above being referred to as an “Event,” and and, for purposes of clauses (i) and or (ii) ), the date on which such Event occurs, or for purposes of clause (iii) ), the date on which such 20 Trading Day 30 or 45 calendar day period is exceeded, being referred to as an “Event Date”), thenthen in addition to any other rights the Investors may have hereunder or under applicable law: (x) within five (5) Business Days after an Event Date relating to a failure in clause (i) only, for so long the Company shall pay to each Investor an amount in cash, as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 0.5% of the affected Registrable Securities aggregate purchase price paid by the Purchaser such Investor pursuant to the Purchase Agreement from for any Registrable Securities held by such Investor on such Event Date; and including the (y) on each 30-day anniversary (or pro rata portion thereof) following any Event Date but excluding (including, for the date avoidance of doubt, a failure in clause (i), in which case each 30-day anniversary shall be measured commencing on which the 31st day following such Event has been cured. For so long Date) until the earlier of (1) the applicable Event is cured or (2) the Registrable Securities are Freely Tradeable, the Company shall pay to each Investor an amount in cash, as the Event has not been cured, liquidated damages will accrue at and not as a rate of 0.50penalty, equal to 0.5% per annum during the 90-day period immediately following the occurrence of the Event Date aggregate purchase price paid by such Investor pursuant to the Purchase Agreement for any unregistered Registrable Securities then held by such Investor. The amounts payable pursuant to the foregoing clauses (x) and (y) are referred to collectively as “Liquidated Damages.” The parties agree that (1) notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall increase by 0.50% per annum at be payable with respect to any period after the end expiration of each subsequent 90-day period, but the Effectiveness Period and in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and the aggregate amount of Liquidated Damages payable in cash or through the issuance of Additional Notes (as defined to an Investor exceed, in the Noteaggregate, 2.5% of the aggregate purchase price paid by such Investor pursuant to the Purchase Agreement and (2) in no event shall the Company be liable in any 30-day period for Liquidated Damages under this Agreement in excess of 0.5% of the aggregate purchase price paid by the Investors pursuant to the Purchase Agreement. Unless otherwise specified in Section 2(f), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages Liquidated Damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy case of the Purchaser under this Agreement for an Eventfirst Event Date. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser nothing shall preclude any Investor from pursuing or obtaining any available remedies at law, specific performance or other equitable relief with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities 2(f) in accordance with applicable law. The Effectiveness Deadline for a registration statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of the Investor to timely provide the Company with information requested by the Company and necessary to complete the registration statement in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights1933 Act.
Appears in 1 contract
Samples: Registration Rights Agreement (BJs RESTAURANTS INC)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be , on Form S-3 F-1 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” substantially in the form attached hereto as Annex A. The Company shall use its all commercially reasonable best efforts to cause the such Registration Statement to be declared effective under the Securities Act as soon as practicable but, in any event, no later than the its Effectiveness Date, and shall use its all commercially reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five two years after the Effective Datedate of this Agreement, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 F-1 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” substantially in the form attached hereto as Annex A. The Company shall use its all commercially reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible practicable but, in any event, no later than by its Effectiveness Date, and shall use its all commercially reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) Promptly following any date on which the Company becomes eligible to use a registration statement on Form F-3 (or similar form that permits incorporation of subsequently filed documents by reference) to register the Registrable Securities for resale, the Company shall file a registration statement on such Form covering the Registrable Securities (or a post-effective amendment on such Form to the then effective Registration Statement) and shall use all commercially reasonable efforts to cause such Registration Statement to be declared effective as soon as practicable thereafter, but in any event prior to the Effectiveness Date therefor. Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” substantially in the form attached hereto as Annex A. The Company shall use all commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period.
(d) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 35 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 35 Trading Day Day-period is exceeded, being referred to as “Event Date”), then, for so long as such event is within then in addition to any other rights the Effectiveness Period, liquidated damages will accrue based Holders may have hereunder or under applicable law: on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1/30th of 1.0% of the aggregate Purchase Price paid by such Holder for Units pursuant to the Purchase Agreement; provided that in no event shall the aggregate amount payable to any such Holder exceed 6.0% of the aggregate Purchase Price paid by such Holder for the Units. All such amounts shall be pro-rated with respect to any Holder in the case the Company has not breached the requirements of this Section 2(d) with respect to a portion of the Registrable Securities issued or issuable to such Holder based on the relative number of Registrable Securities which are not so registered compared to the total number of Registrable Securities issued or issuable to such Holder. The Company shall be obligated to pay any such partial liquidated damages pursuant to the terms hereof shall apply this Section 2(d) in arrears on a pro rata weekly basis for on the last business day of each such week. If the Company fails to pay any portion partial liquidated damages pursuant to this Section 2(d) in full within seven days after the date payable, the Company will pay interest thereon at a rate of 10% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full.
(e) Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be required to include the Registrable Securities of a month Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under Section 2(d) to any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the cure of an Event other than with respect Filing Date (subject to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this requirements set forth in Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities3(a)).
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Samples: Preferred Share Unit Purchase Agreement (Canadian Superior Energy Inc)
Registration. (a) On or as promptly as practicable after the Closing Date, Borrower shall cause the Aircraft to be duly registered in its name under the Transportation Code, or as otherwise permitted by this Section 4.2(e), and at all times thereafter shall cause the Aircraft to remain so registered. Borrower shall be entitled to register the Aircraft or cause the Aircraft to be registered in a Permitted Country or another country with the prior written approval of Security Agent if: (1) such proposed change of registration is made in connection with a Permitted Lease; (2) no Event of Default is in existence, (3) Borrower and Permitted Lessee shall duly register with the appropriate Governmental Entity of such country Borrower’s interest as the owner and Security Agent’s Lien in and to the Filing DateAircraft and shall, the Company shall prepare and file with the Commission a Registration Statement covering the resale of at all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3times thereafter, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause the Registration Statement same to be declared effective under remain so duly registered unless and until such time as the Securities Act no later than registration of the Effectiveness DateAircraft is changed as provided herein, and shall use its reasonable best efforts cause to keep be done, at all times all other acts including the Registration Statement continuously effective under filing, recording and delivery of any document or instrument or, by reference to prudent industry practice in such country, that Security Agent deems reasonably necessary or advisable in order to create, preserve and protect such interest in the Securities Act until the date which is the earlier of (i) five years after the Effective DateAircraft as against Borrower and any third parties, (ii4) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If insurance provided for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant Operative Agreements shall be in full force and effect before, at the time of, and after such change in registration, and Security Agent and each Lender shall receive a certificate of Borrower’s or Permitted Lessee’s insurance broker to Section 2(a), such effect; (5) none of Security Agent or the Lenders shall be subjected to any adverse tax consequence for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company Borrower is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all indemnify such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements person as a result of such piggyre-back rightsregistration, unless Borrower agrees to indemnify such Person therefor in a manner reasonably acceptable to such Person; and (6) Security Agent receives an opinion of reputable counsel selected by Borrower and reasonably acceptable to Security Agent in form and substance reasonably satisfactory to Security Agent. Borrower shall provide not less than thirty (30) days’ prior written notice of a proposed change in registration (specifying the jurisdiction involved) accompanied by a draft of all required documents. Borrower shall reimburse Security Agent and the Lenders for all of their reasonable out-of-pocket fees and expenses (including reasonable fees and disbursements of counsel) incurred in connection with any such change in registration meeting the requirements of this paragraph (e). Security Agent and each Lender agrees to cooperate with Borrower to the extent reasonably necessary to enable it to effectuate such change in registration. Borrower shall also cause this Mortgage to be duly recorded and at all times maintained of record as a first-priority perfected mortgage (subject to Permitted Liens) on the Aircraft, the Airframe, and each of the Engines.
Appears in 1 contract
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Each Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purposein accordance herewith). The Company shall cause each Registration Statement to become effective and remain effective as provided herein. The Company shall use its reasonable best commercial efforts to cause the each Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the Effectiveness Date, and . The Company shall use its reasonable best commercial efforts to keep the each Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) five years after the Effective Date, all Registrable Securities covered by such Registration Statement have been sold or (ii) such time as all of the Registrable Securities have been publicly sold covered by the Purchaser, or (iii) such time as all of the Registrable Securities Registration Statement may be sold immediately without registration under the Securities Act and without volume restrictions pursuant to Rule 144(k) ), as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (the each, an “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a any Registration Statement is not filed on or prior to its the applicable Filing Date (if the Company files a for such Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or Statement; (ii) a Registration Statement filed hereunder is not declared effective by the Commission on or prior by the date required hereby with respect to its required Effectiveness Date, or such Registration Statement; (iii) after its Effective Date, without regard for a Registration Statement is filed with and declared effective by the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)Commission, such Registration Statement ceases for any reason to be effective and available to the Purchaser (by suspension or otherwise) as to all Registrable Securities to which it is required to cover relate at any time prior to the expiration of its the Effectiveness PeriodPeriod applicable to such Registration Statement (without being succeeded immediately by an additional Registration Statement filed and declared effective) for a period of time which shall exceed 45 days in the aggregate per year or more than 30 consecutive calendar days (defined as a period of 365 days commencing on the date such Registration Statement is declared effective); or (iv) the Common Stock is not listed or quoted, or is suspended from trading on any Trading Market for an aggregate a period of 20 three (3) consecutive Trading Days for all (provided the Company shall not have been able to cure such events trading suspension within 30 days of the notice thereof or list the Common Stock on another Trading Market); (any such failure or breach being referred to as an “Event,” and for purposes of clauses clause (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date which such 45 day or 30 consecutive day period (as the case may be) is exceeded, or for purposes of clause (iv) the date on which such 20 three (3) Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) then until the applicable Event is cured. The , the Company shall pay to each Holder an amount in cash, as liquidated damages pursuant and not as a penalty, equal to the terms hereof shall apply 2.0% for each thirty (30) day period (prorated for partial periods) on a pro rata daily basis for any portion of a month prior to the cure original principal amount of an each applicable Note. While such Event other than with respect to the initial Event Date thereof. Following the cure of all Eventscontinues, the accrual of such liquidated damages shall ceasebe paid not less often than each thirty (30) days. The Any unpaid liquidated damages under as of the date when an Event has been cured by the Company shall be paid within three (3) days following the date on which such Event has been cured by the Company.
(c) Within three business days of the Effectiveness Date, the Company shall cause its counsel to issue a blanket opinion in the form attached hereto as Exhibit A, to the transfer agent stating that the shares are subject to an effective registration statement and can be reissued free of restrictive legend upon notice of a sale by the Purchaser and confirmation by the Purchaser that it has complied with the prospectus delivery requirements, provided that the Company has not advised the transfer agent orally or in writing that the opinion has been withdrawn. Copies of the blanket opinion required by this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder delivered to the Purchaser with respect to within the Primary Shares or Underlying Shares that are no longer Registrable Securitiestime frame set forth above.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Samples: Registration Rights Agreement (Maxim Mortgage Corp/)
Registration. (a) On or prior to the Filing Date, the The Company shall prepare and file with the Commission a Registration Statement covering registration statement for the resale of all the Registrable Securities Securities, not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement later than thirty (30) Business Days after the Execution Date, which registration statement shall be filed with the SEC on Form S-3 F-1 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose“Initial Registration Statement”). The Company shall use its commercially reasonable best efforts to (i) cause the Registration Statement (as defined below) to be declared effective under by the Securities Act no later than the Effectiveness DateSEC as soon as practicable, and shall use its reasonable best efforts to (ii) keep the Registration Statement continuously effective under the Securities Act until the date which is Investor ceases to hold Registrable Securities. The Registration Statement shall provide for any method or combination of methods of resale of Registrable Securities legally available to, and requested by, the earlier Investor, and shall comply with the relevant provisions of (ithe Securities Act and Exchange Act. The Investor acknowledges that it will be identified in the Registration Statement as an underwriter within the meaning of Section 2(a)(11) five years after of the Effective DateSecurities Act, (ii) such time and the Investor shall furnish all information reasonably requested by the Company for inclusion therein and shall otherwise cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of the Registration Statement. If Form F-3 becomes available for the registration of the resale of all of the Registrable Securities have been publicly sold by hereunder, the PurchaserCompany may use such Form; provided, or (iii) such time as however, if Form F-3 is not available for the registration of the resale of all of the Registrable Securities may be sold pursuant to Rule 144(k) (hereunder, the “Effectiveness Period”)Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a registration statement on Form F-3 covering all of the Registrable Securities has been declared effective by the SEC.
(b) If for any reason Notwithstanding the Commission does not permit registration obligations set forth in Section 7.1(a), if the SEC informs the Company that all of the Registrable Securities to be included in cannot, as a result of the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale application of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly inform the Investor and use its commercially reasonable efforts to file amendments to the Initial Registration Statement or a new registration statement (a “New Registration Statement”) as required by the SEC, covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form S-3 (except if the Company is not then eligible F-1, Form F-3 or such other form available to register for resale the Registrable Securities on Form S-3as a secondary offering, in which case such registration shall be on another appropriate form for such purposesubject to the provisions of Section 7.1(a). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a If the Company amends the Initial Registration Statement is not filed on or prior to its Filing Date (if the Company files a New Registration Statement without affording Statement, as the Purchaser the opportunity to review and comment on the same as required by case may be, in accordance with Section 3(a7.1(b) hereofabove, the Company shall not be deemed will use its commercially reasonable efforts to have satisfied this clause (i))file with the SEC, as promptly as possible, one or (ii) a Registration Statement more registration statements on Form F-1 or F-3 or such other form that is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to register for resale all of those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended. The Initial Registration Statement, a New Registration Statement, and any other registration statements pursuant to which it is required the Company seeks to cover at register for resale any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not each be cutback under any such Registration Statements referred to herein as a result of “Registration Statement” and collectively as the “Registration Statements.” The term “Registration Statement(s)” shall include any prospectus, amendments and supplements to such piggyregistration statement or prospectus, including pre-back rightsand post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference, if any, in such registration statement.
Appears in 1 contract
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be , on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) a “Plan of Distribution” section in form and substance substantially the same as the “Plan of Distribution” section included in the Company’s Registration Statement on Form S-3 (No. 333-112759) (the “Plan of Distribution Section”). The Company shall use its reasonable best efforts to cause the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five the later to occur of (A) two years after the its Effective Date, and (B) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders and (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) Holders (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each Each such Registration Statement shall contain (except if otherwise required pursuant to be declared effective under written comments received from the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep Commission upon a review of such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (iStatement) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review “Plan of Distribution” section in form and comment on substance substantially the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration Plan of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.Distribution
Appears in 1 contract
Samples: Registration Rights Agreement (Telecommunication Systems Inc /Fa/)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be , on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such the Registration Statement continuously effective under the Securities Act during until the date which is the earliest of (i) five years after its entire Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent and the affected Holders (the "Effectiveness Period"). By 5:00 p.m. (New York City time) on the Trading Day immediately following the Effective Date, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(cb) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness DateDate or if by the Business Day immediately following the Effective Date the Company shall not have filed a "final" prospectus for the Registration Statement with the Commission under Rule 424(b) (whether or not such a prospectus is actually required by such Rule), or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefor, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 30 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “"Event,” " and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 30 Trading Day Day-period is exceeded, being referred to as “"Event Date”"), thenthen in addition to any other rights the Holders may have hereunder or under applicable law: on each such Event Date, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement. The parties agree that (1) the Company will not be liable for liquidated damages under this Agreement with respect to any Warrants or Warrant Shares and (2) in no event will the Company be liable for liquidated damages under this Agreement in excess of 1.0% of the aggregate Investment Amount of the Holders as of any Event Date or monthly anniversary thereof, and (3) the maximum aggregate liquidated damages payable to a Holder under this Agreement shall be ten percent (10%) of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement. The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy case of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(dc) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a "Selling Holder Questionnaire"). The Company shall not be cutback required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under Section 2(b) to any such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Samples: Registration Rights Agreement (Monterey Gourmet Foods)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be , on Form S-3 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent and the affected Holders (the “Effectiveness Period”"EFFECTIVENESS PERIOD").
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities for resale, the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be declared effective as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor. Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall cause such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period.
(d) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 30 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “Event"EVENT,” " and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 30 Trading Day Day-period is exceeded, being referred to as “Event "EVENT Date”"), thenthen in addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.0% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder for Shares pursuant to the Purchase Agreement from Agreement; and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser y) on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 2.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement. The parties agree that the Company will not be liable for liquidated damages under this Section in respect of the Warrants. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 10% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy case of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(de) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a "SELLING HOLDER QUESTIONNAIRE"). The Company shall not be cutback required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under Section 2(d) to any such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Samples: Registration Rights Agreement (Bluebook International Holding Co)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be , on Form S-3 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five two years after the its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent and the affected Holders (the “"Effectiveness Period”").
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities for resale, the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be declared effective as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor. Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall cause such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration
(d) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 30 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “"Event,” " and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 30 Trading Day period is exceeded, being referred to as “"Event Date”"), thenthen in addition to any other rights the Holders may have under the Transaction Date or under applicable law or at equity: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.0% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder for Shares at closing pursuant to the Purchase Agreement from Loan Agreement; and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser y) on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate Investment Amount paid by such Holder for Notes at Closing pursuant to the Loan Agreement. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 10% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy case of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(de) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a "Selling Holder Questionnaire"). The Company shall not be cutback required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under Section 2(d) to any such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Samples: Registration Rights Agreement (Integrated Security Systems Inc)
Registration. (a) On or prior to the Filing Date, Date the Company shall prepare and file with the Commission a Registration Statement on an appropriate form covering the resale of all the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best commercial efforts to cause the Registration Statement to be declared effective under the Securities Act no later than as promptly as possible after the Effectiveness Date, and filing thereof. The Company shall use its reasonable best commercial efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iiiii) such time as all of the Registrable Securities may be sold immediately without registration under the Securities Act pursuant to Rule 144(k) 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed to the Company's transfer agent and the affected Holders (the “"Effectiveness Period”").
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its the Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall pay to each Holder an amount in cash, as liquidated damages and not be deemed as a penalty, equal to have satisfied this clause (i)), or (ii) a 1% of such Purchaser's purchase price of the Company Common Stock. If the Registration Statement is not declared effective by the Commission filed on or prior to its required Effectiveness Date, or 30 calendar days from the date of this Agreement (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “"Event,” " and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceededEvent occurs, being referred to as “"Event Date”"), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) then until the applicable Event is cured. The , the Company shall pay to each Holder an amount in cash, as liquidated damages pursuant and not as a penalty, equal to 4% of such Purchaser's purchase price of the terms hereof Company Common Stock for such thirty (30) day period (prorated for partial period), which liquidated damage amount shall apply on a pro rata basis increase to 5% for any portion of a month prior to the cure of an each subsequent 30 day period (prorated for partial periods). While such Event other than with respect to the initial Event Date thereof. Following the cure of all Eventscontinues, the accrual of such liquidated damages shall ceasebe paid not less often than each thirty (30) days.
(c) Within five (5) business days of the Effectiveness Date, the Company shall cause its counsel to issue a blanket opinion in the form attached hereto as Schedule A, to the transfer agent stating that the shares are subject to an effective registration statement and can be reissued free of restrictive legend upon notice of a sale by the Purchaser and confirmation by the Purchaser that it has complied with the prospectus delivery requirements, provided that the Company has not advised the transfer agent orally or in writing that the opinion has been withdrawn. The liquidated damages under Copies of the blanket opinion required by this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder delivered to the Purchaser with respect to within the Primary Shares or Underlying Shares that are no longer Registrable Securitiestime frame set forth above.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Samples: Registration Rights Agreement (Eagle Broadband Inc)
Registration. (a) On Parent shall use commercially reasonable efforts to (i) register on Form S-1 or prior to any successor registration form under the Filing Securities Act as subsequently may be adopted by the SEC and (ii) file all reports required for the availability of an exemption for the sale of Parent Common Stock under Rule 144. Parent shall use its commercially reasonable efforts (1) within one hundred-twenty (120) days after the Closing Date, the Company shall at its expense to (A) prepare and file with the Commission SEC a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made registration statement on a continuous basis Form S-1 pursuant to Rule 415. The 415 under the Securities Act with respect to resales of the shares of Parent Common Stock issued pursuant to this Agreement (the “Registration Statement shall be on Form S-3 Statement”) and (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts B) to cause the Registration Statement to be declared become effective under as soon as possible after filing (and in any event within such 120-day period) and (2) to maintain the Securities Act no later than the Effectiveness Date, and shall use its reasonable best efforts to keep effectiveness of the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (ix) five years after the Effective Date, (ii) Seller’s disposition of all such time as all of the Registrable Securities have been publicly sold by the Purchaser, registered shares or (iiiy) Seller being able to dispose of all such time as all of the Registrable Securities may be sold registered shares pursuant to Rule 144(k) (). Parent shall bear all of its expenses incurred in connection with the “Effectiveness Period”)registration and qualification of the shares registered pursuant to this Section 4.8 and up to $5,000 of expenses reasonably incurred by Seller therewith, and Seller shall pay all other fees and expenses incurred by it Seller shall cooperate with Parent in the preparation, filing and process of securing the effectiveness of the Registration Statement and shall furnish to Parent such information relating to it and such further and supplemental information as may be necessary or as may be reasonably requested by Parent for use in the Registration Statement and any amendments or supplements thereto. Parent will advise Seller of the effectiveness of the Registration Statement, of the issuance of any stop order with respect to the effectiveness thereof, of the suspension of the qualification of the Parent Common Stock for offering or sale in any jurisdiction, or of the initiation or threat of any proceeding for any such purpose.
(b) If for any reason To the Commission does not permit all extent permitted by applicable law, Parent will indemnify Seller, its officers, directors, members, managers, trustees and partners, and each person who controls Seller within the meaning of Section 15 of the Registrable Securities Act, with respect to any registration effected pursuant this Section 4.8, against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any prospectus, offering circular or other document (including any related registration statement, notification or the like) made in such registration, qualification or compliance, or based on any omission (or alleged omission) to state therein a material fact required to be included in stated therein or necessary to make the Registration Statement filed pursuant to Section 2(a)statements therein not misleading, or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event violation by its Filing Date, an additional Registration Statement covering the resale Parent of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible butor the Exchange Act or any rule or regulation thereunder applicable to Parent and relating to action or inaction required of Parent in connection with any such registration, qualification or compliance, and will reimburse Seller, its officers, directors and partners, for any legal and any other expenses reasonably incurred in connection with investigating and defending any such claim, loss, damage, liability or action, provided that Parent will not be liable in any eventsuch case to the extent that any such claim, no later than its Effectiveness Dateloss, and shall use its reasonable best efforts damage, liability or expense arises out of or is based on any untrue statement or omission based upon written information furnished to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness PeriodParent by Seller.
(c) If: To the extent permitted by applicable law, Seller will indemnify Parent, each of its directors and officers, and each person who controls Parent within the meaning of Section 15 of the Securities Act, against all claims, losses damages and liabilities (ior actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact made by Seller contained in the Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i))Statement, or (ii) a Registration Statement is not declared effective by the Commission on any prospectus, offering circular or prior to its required Effectiveness Dateother document, or any omission (iiior alleged omission) after to state therein a material fact required to be stated by Seller therein or necessary to make the statements by Seller therein not misleading, and will reimburse Parent and its Effective Datedirectors, without regard for the reason thereunder officers, partners, persons or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases control persons for any reason legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action; provided, however, that the obligations of Seller hereunder shall be limited to be effective and available an amount equal to the Purchaser net proceeds to Seller of securities sold as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiescontemplated herein.
(d) Registration Statements Each party entitled to indemnification under this Section 2 may contain shares other than Registrable Securities in accordance with 4.8 (the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.“
Appears in 1 contract
Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). ) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all expiration of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities Shares and Additional Investment Right Shares to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason (other than a Holder’s failure to comply with the requirements of Section 2(d) or 6(d)) any Registrable Securities are not then included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Datethe 30th day following such date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" substantially in the form attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its the Effectiveness DateDate for such Registration Statement, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for an aggregate of more than 20 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “"Event,” " and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 Trading Day Day-period is exceeded, being referred to as “"Event Date”"), then, for so long in addition to any other rights available to the Holders under the Transaction Documents or under applicable law, at the option of each Holder, commencing on the date after the Event Date, the Company shall pay to each Holder an amount in cash, as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to .0003333 of the affected Registrable Securities Investment Amount paid by the Purchaser pursuant to such Investor under the Purchase Agreement from and including for each day up through the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate second monthly anniversary of 0.50% per annum during the 90-day period immediately following the occurrence of the such Event Date and shall increase by 0.50% per annum at then .0006666 of the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured Investment Amount paid by such date) Investor under the Purchase Agreement for each day thereafter until the applicable Event is cured. The liquidated damages referred to in the previous sentence shall be payable every four weeks, beginning on the date which is four weeks from the Event Date. If the Company fails to pay any liquidated damages pursuant to this Section in full within seven days after the terms hereof shall apply on date payable, the Company will pay interest thereon at a pro rata basis for any portion rate of a month prior 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the cure of an Event other than with respect to Holder, accruing daily from the initial Event Date thereof. Following the cure of all Events, the accrual of date such liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoingare due until such amounts, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that plus all such interest thereon, are no longer Registrable Securitiespaid in full.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a "Selling Holder Questionnaire"). The Company shall not be cutback required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under any Section 2(c) hereof to such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully completed Selling Holder Questionnaire at least one Trading Day prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Samples: Registration Rights Agreement (Vineyard National Bancorp)
Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). ) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all expiration of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities Shares and Additional Investment Right Shares to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not then included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Datethe 30th day following such date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” substantially in the form attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its the Effectiveness DateDate for such Registration Statement, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a filed Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for an aggregate of more than an aggregate of 20 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 Trading Day Day-period is exceeded, being referred to as “Event Date”), then, for so long in addition to any other rights available to the Holders under the Transaction Documents or under applicable law, but subject to the buy-back option specified below in this Section, at the option of each Holder, commencing on the date after the Event Date the Company shall pay to each Holder an amount in cash, as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to .0003333 of the affected Registrable Securities Investment Amount paid by the Purchaser pursuant to such Investor under the Purchase Agreement from and including for each day up through the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate second monthly anniversary of 0.50% per annum during the 90-day period immediately following the occurrence of the such Event Date and shall increase by 0.50% per annum at then .0006666 of the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured Investment Amount paid by such date) Investor under the Purchase Agreement for each day thereafter until the applicable Event is cured. The If the Company fails to pay any liquidated damages pursuant to this Section in full within seven days after the terms hereof shall apply on date payable, the Company will pay interest thereon at a pro rata basis for any portion rate of a month prior 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the cure of Holder, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. If there shall occur an Event other by reason of Section 2(c)(ii) or 2(c)(iii) above and a Holder shall in a written notice to the Company demand payment of the liquidated damages resulting therefrom, then, in lieu of paying such liquidated damages under this Section, the Company shall have the option to require the demanding Holder to sell to the Company all, but not less than all of the Shares and Additional Investment Rights then held by such Holder at a price equal to (1) with respect to the initial Event Date thereof. Following the cure of all EventsShares, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy product of the Purchaser under this Agreement number of Shares at issue multiplied by the VWAP for an Event. Notwithstanding the foregoing15 Trading Days immediately preceding the Scheduled Buy-Back Date (as defined below), no liquidated damages will accrue hereunder to the Purchaser and (2) with respect to the Primary Additional Investment Rights at issue, the Black Scholes value of such Additional Investment Rights (in accordance with variable values agreed to by the Holder and the Company). The Company may exercise the buy back option set forth in the immediately preceding sentence by delivery of an irrevocable notice to the demanding Holder not more than two Trading Days following the delivery of such Holder’s liquidated damage notice. The aggregate buy-back price for such Shares and Additional Investment Rights must be paid on the 20th Trading Day following delivery of the notice (the “Scheduled Buy-Back Date”), or Underlying Shares that are no longer Registrable Securitiesat the option of the Holder the notice shall be null and void, the liquidated damages will be reinstated with accrued interest and the Company shall forfeit its right to deliver future such notices. Notwithstanding anything to the contrary set forth herein, the Holder shall have the right at any time prior to the Scheduled Buy-Back Date to rescind the demand for payment of the liquidated damages under Section 2(c)(ii) giving rise to the buy-back notice of the Company, in which case the liquidated damages under Section 2(c)(ii) will be deemed waived and the Company will not have the right to deliver a buy-back notice or, if previously delivered, such notice will be void ab initio.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under any Section 2(c) hereof to such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully completed Selling Holder Questionnaire at least one Trading Day prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Samples: Registration Rights Agreement (East West Bancorp Inc)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be , on Form S-3 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earliest of (i) five years after its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent and the affected Holders (the "Effectiveness Period"). By 5:00 p.m. (New York City time) on the Trading Day following the Effective Date, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(b) Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities for resale, the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be declared effective as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor. Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall cause such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period. By 5:00 p.m. (New York City time) on the Trading Day following the Effective Date of such Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or if by the Business Day immediately following the Effective Date the Company shall not have filed a “final” prospectus for the Registration Statement with the Commission under Rule 424(b) in accordance with Section 2(a) or 2(b) herein, as the case may be (whether or not such a prospectus is technically required by such Rule), or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefor, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 30 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 30 Trading Day Day-period is exceeded, being referred to as “Event Date”), thenthen in addition to any other rights the Holders may have hereunder or under applicable law or in equity, for so long as on such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is curedcured the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 2.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement. The parties agree that (1) the Company will not be liable for liquidated damages under this Agreement with respect to any Warrants or Warrant Shares and (2) in no event will the Company be liable for liquidated damages under this Agreement in excess of 2.0% of the aggregate Investment Amount of the Holders in any single month, and (3) the maximum aggregate liquidated damages payable to a Holder under this Agreement shall be ten percent (10%) of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement. The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy case of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback required to include the Registrable Securities of a Holder in a Registration Statement until such Holder has provided the Company with a fully completed Selling Holder Questionnaire and shall not be required to pay any liquidated or other damages under Section 2(c) to any such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Samples: Registration Rights Agreement (Sona Mobile Holdings Corp)
Registration. Holders shall be able to exercise their Warrants only if a registration statement relating to the Warrant Shares is then in effect, or the exercise of such Warrants is exempt from the registration requirements of the Securities Act, and such securities are qualified for sale or exempt from qualification under the applicable securities laws of the states in which the various holders of the Warrants or other persons to whom it is proposed that the Warrant Shares be issued on exercise of the Warrants reside.
(a) On or prior to the Filing Date, the The Company shall prepare and file cause to be filed within 30 days of the issuance date of the Warrants with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The 415 under the Securities Act a shelf registration statement (the "Registration Statement shall be Statement") on Form S-3 (except if the appropriate form relating to the offer and sale by the Company is not then eligible of the Warrant Shares to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). holders of Warrants upon exercise of the Warrants.
(b) The Company shall use its reasonable best efforts to cause the such Registration Statement to be declared effective under by the Securities Act no later than Commission on or before 90 days from the Effectiveness Date, and date of issuance of the Warrants.
(c) The Company shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act in order to permit the prospectus included therein to be lawfully delivered by the Company to the holders exercising the Warrants until the later of (i) two years following the effective date which is of the Registration Statement and (ii) the earlier of (A) the Expiration Date and (B) the first date as of which all Warrants have been exercised; provided that, except as provided below with respect to any Black Out Period (as defined herein), the Company shall be deemed not to have used its reasonable best efforts to keep the Registration Statements effective during the requisite period if it voluntarily takes any action that would result in it not being able to offer and sell the Warrant Shares upon exercise of the Warrants during that period, unless such action is required by applicable law. Notwithstanding the foregoing, the Company shall not be required to amend or supplement the Registration Statement, any related prospectus or any document incorporated therein by reference, for a period (a "Black Out Period") not to exceed, for so long as this Agreement is in effect, an aggregate of 60 days in any calendar year, in the event that (i) five years after an event occurs and is continuing as a result of which the Effective Registration Statements, any related prospectus or any document incorporated therein by reference as then amended or supplemented would, in the Company's good faith judgment, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (ii)(A) the Company determines in its good faith judgment that the disclosure of such event at such time would have a material adverse effect on the business, operations or prospects of the Company or (B) the disclosure otherwise relates to a material business transaction which has not yet been publicly disclosed; provided, further, that such Black Out Period shall be extended for any period, not to exceed an aggregate of 30 days in any calendar year, during which the Commission is reviewing any proposed amendment or supplement to the Registration Statement, any related prospectus or any document incorporated therein by reference which has been filed by the Company; and provided, further, that no Black Out Period may be in effect during the three months prior to the Expiration Date.
(d) The Company shall cause the Registration Statement and the related prospectus and any amendment or supplement thereto, as of the effective date of the Registration Statement, amendment or supplement, (i) to comply in all material respects with the applicable requirements of the Securities Act and the rules and regulations of the Commission and (ii) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(e) The Company shall give prompt written notice to the holders of the Warrants, the Initial Purchaser and the Warrant Agent of (i) the effectiveness of the Registration Statement or any post-effective amendment thereto, (ii) such time as all the issuance by the Commission of any stop order suspending the effectiveness of the Registrable Securities have been publicly sold by Registration Statements or the Purchaserinitiation or threatening of any proceedings for that purpose, or (iii) such time as all the receipt by the Company or its legal counsel of any notification with respect to the suspension of the Registrable Securities may be sold pursuant qualification of the Warrant Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, (iv) the happening of any event that requires the Company to Rule 144(kmake changes in the Registration Statements or the prospectus in order to make the statements therein not misleading and (v) (the “Effectiveness commencement and termination of any Black Out Period”).
(bf) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of the Registration Statement to be declared effective under Statements at the Securities Act as soon as earliest possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Periodtime.
(cg) If: Upon the occurrence of any event contemplated by Section 17(e)(iv) or (v) hereof (subject to the last sentence of Section 17(c) hereof) the Company shall promptly prepare a post-effective amendment to the Registration Statement or a supplement to the related prospectus or file any other required document so that, as thereafter delivered to holders of the Warrants, the prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading and will contain the current information required by the Securities Act.
(h) Not later than the effective date of the Registration Statements, the Company will provide a CUSIP number for the Warrant Shares and provide the Warrant Agent with printed certificates for the Warrant Shares in a form eligible for deposit with the Depository Trust Company.
(i) a The Company will comply with all rules and regulations of the Commission to the extent and so long as they are applicable to the Registration Statement is not filed on Statement.
(j) The Company shall register or prior to its Filing Date (if qualify or cooperate with the holders in connection with the registration or qualification of the Warrant Shares for offer and sale by the Company files a Registration Statement without affording upon exercise of the Purchaser Warrants under the opportunity securities or blue sky laws of such states of the United States as any holder reasonably requests and do any and all other acts or things necessary or advisable to review enable such offer and comment on the same as required by Section 3(a) hereof, sale in such jurisdictions; provided that the Company shall not be deemed required to have satisfied this clause (i)), ) qualify to do business in any jurisdiction in which it is not then so qualified or (ii) a Registration Statement is not declared effective by the Commission on take any action which would subject it to general service of process or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event taxation in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to jurisdiction in which it is required to cover at any time prior to not then so subject.
(k) The Company shall bear all expenses incurred by it in connection with the expiration performance of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages obligations under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities17.
(dl) Registration Statements The Company acknowledges and agrees that any remedy at law for breach of any provision of this Section 17 will be inadequate and that, in addition to any other remedies that the holder may have, the holders shall be entitled to the remedy of specific performance to ensure the Company performs its obligations under this Section 2 may contain shares other than Registrable Securities in accordance with 17. The election of any one or more remedies by the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities holders hereunder shall not be cutback under constitute a waiver of the right to pursue other available remedies.
(m) No person is entitled to include any securities of the Company held by such person in, or to have such securities registered under, the Registration Statements as a result of such piggy-back rightsStatement.
Appears in 1 contract
Registration. (a) On or prior to Effectiveness Deadline. Following the Filing date hereof, but no later than 60 days following the Closing Date, the Company HEP shall prepare and file with a registration statement under the Commission a Registration Statement covering Securities Act to permit the public resale of all Registrable Securities not already covered then outstanding from time to time as permitted by an existing and effective Rule 415 (or any similar provision then in effect) of the Securities Act with respect to all of the Registrable Securities (the “Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415Statement”). The Registration Statement filed pursuant to this Section 2.01(a) shall be on Form S-3 (except if such appropriate registration form or forms of the Company is not then eligible to register for resale Commission as shall be selected by HEP so long as it permits the continuous offering of the Registrable Securities on Form S-3, pursuant to Rule 415 (or any similar provision then in which case such registration shall be on another appropriate form for such purpose)effect) under the Securities Act at then-prevailing market prices. The Company HEP shall use its commercially reasonable best efforts to cause the Registration Statement to be declared become effective under on or as soon as practicable after filing. Any Registration Statement shall provide for the Securities Act no later than the Effectiveness Dateresale pursuant to any method or combination of methods legally available to, and reasonably requested by, the Holders of any and all Registrable Securities covered by such Registration Statement. HEP shall use its commercially reasonable best efforts to keep cause the Registration Statement continuously effective under filed pursuant to this Section 2.01(a) to be effective, supplemented and amended to the Securities Act until extent necessary to ensure that it is available for the date which is the earlier resale of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as Holders until all of the Registrable Securities may covered by such Registration Statement have ceased to be sold pursuant to Rule 144(k) Registrable Securities (the “Effectiveness Period”).
. The Registration Statement when effective (bincluding the documents incorporated therein by reference) If for any reason the Commission does not permit will comply as to form in all material respects with all applicable requirements of the Registrable Securities Act and the Exchange Act and will not contain an untrue statement of a material fact or omit to state a material fact required to be included stated therein or necessary to make the statements therein not misleading (in the case of any prospectus contained in such Registration Statement or documents incorporated therein by reference, in the light of the circumstances under which a statement is made). As soon as practicable following the date that the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be madebecomes effective, but in any event by its Filing Datewithin two (2) Business Days of such date, an additional Registration Statement covering HEP shall provide the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance Holders with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price written notice of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence effectiveness of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable SecuritiesRegistration Statement.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Samples: Common Unit Purchase Agreement (Holly Energy Partners Lp)
Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 contain (except if otherwise required pursuant to written comments received from the Company is not then eligible to register for resale Commission upon a review of such Registration Statement) the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) at such time as all of the Registrable Securities have been publicly sold by the PurchaserHolders, or (iiiii) at such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) as determined by the Company and evidenced by a written opinion of its counsel to that effect delivered to each of the Holders who then hold Registrable Securities that have not been publicly sold, which opinion shall not be unreasonably withheld or delayed (the “"Effectiveness Period”"). Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities for resale, but in no event more than ten days after such date, the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Shelf Registration Statement to be declared effective as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor.
(b) If for any reason the Commission does not permit all of the Registrable Securities Shares to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not permitted by the Commission to be included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Datethe 30th day following such date (or if such day is not a Business Day, the next Business Day), an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 . Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Company is not then eligible to register for resale Commission upon a review of such Registration Statement) the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “"Event,” " and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 Trading Day Day-period is exceeded, being referred to as “"Event Date”"), then, for so long in addition to any other rights available to the Holders under the Transaction Documents or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as such event is within the Effectiveness Periodfees and not as a penalty, liquidated damages will accrue based on the Purchase Price equal to 1% of the affected Registrable Securities paid by the Purchaser aggregate Investment Amount of such Holder pursuant to the Purchase Agreement from Agreement; and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser y) on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as fees and not as a penalty, equal to 2% of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement; provided, that the fees payable under this section shall be capped for any Investor at 15% of such Investor's Investment Amount (which cap shall not affect such Investor's right to seek other available remedies). If the Company fails to pay any fees pursuant to this Section in full within ten days after the date payable, the Company will pay interest thereon at a rate of 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such fees are due until such amounts, plus all such interest thereon, are paid in full. The liquidated damages fees pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Registration. (a) On or prior to the applicable Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be , on Form S-3 S-1 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Exhibit A. The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earliest of (i) two years after its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders pursuant to such Registration Statement, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders without volume or manner of sale limitations pursuant to Rule 144 as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s Transfer Agent and the affected Holders (the “Effectiveness Period”). By 5:00 p.m. (New York City time) on the Business Day immediately following the Effective Date of such Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final Prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(b) Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register Registrable Securities for resale, the Company shall notify the Holder of Registrable Securities thereof. Thereafter, for so long as the Company remains eligible to use a registration statement on Form S-3 to register Registrable Securities for resale, the Company shall, promptly upon the request of the Holders of a majority of the Registrable Securities, prepare a Registration Statement on Form S-3 covering all such Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be filed by the Filing Date for such Registration Statement and declared effective under the Securities Act as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor. Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Exhibit A. The Company shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period. By 5:00 p.m. (New York City time) on the Business Day immediately following the Effective Date of such Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final Prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(c) If: (i) a Registration Statement is not filed on or prior Each Holder agrees to its Filing Date (if furnish to the Company files a Registration Statement without affording completed Questionnaire in the Purchaser the opportunity form attached to review and comment on the same this Agreement as required by Section 3(a) hereof, the Exhibit B (a “Selling Holder Questionnaire”). The Company shall not be deemed required to have satisfied this clause (i)), or (ii) include in a Registration Statement is not declared effective by the Commission on or prior Registrable Securities of a Holder who fails to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available furnish to the Purchaser as to all Registrable Securities to which it is required to cover Company a fully completed Selling Holder Questionnaire at any time least two Trading Days prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events Filing Date (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant subject to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but requirements set forth in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the NoteSection 4(a), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities).
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Samples: Registration Rights Agreement (Communication Intelligence Corp)
Registration. (ai) On or prior Subject to the Filing terms and conditions of this Agreement, the Company covenants and agrees that as promptly as practicable after the Closing Date (and in any event no later than 90 days after the Closing Date), the Company shall prepare and file with the Commission SEC a shelf registration on an appropriate form under Rule 415 under the Securities Act (a “Shelf Registration Statement”) covering all of the Registrable Securities (as defined below), and, to the extent the Shelf Registration Statement covering has not theretofore been declared effective, the Company shall use commercially reasonable efforts to cause such Shelf Registration Statement to be declared or become effective as promptly as practicable (and in any event no later than 180 days after the Closing Date) and to keep such Shelf Registration Statement continuously effective and in compliance with the Securities Act and usable for the resale of such Registrable Securities for a period from the date of its initial effectiveness until such time as there are no Registrable Securities remaining (including by refiling such Shelf Registration Statement (or a new Registration Statement) if the initial Registration Statement expires). Notwithstanding the foregoing, if the Company shall no longer be eligible to file a Shelf Registration Statement, then the Company shall not be obligated to file or keep effective a Shelf Registration Statement and the Company shall not be required to effect any other registration with respect to the Registrable Securities unless and until requested to do so in writing by the Purchasers or Holders; provided, that, in such event that the Company becomes no longer eligible to file a Shelf Registration Statement, any Purchaser or Holder shall have the right to demand the registration (a “Demand Registration”) of the Registrable Securities, and, in such event, the Company shall file with the SEC a registration statement (a “Demand Registration Statement”) on an appropriate form covering all Registrable Securities not already covered by an existing no less than 30 days following the Company’s receipt of notice of such demand from any Purchaser or Holder, and effective further to the extent the Demand Registration Statement for an offering has not theretofore been declared effective, the Company shall use commercially reasonable efforts to cause such Demand Registration Statement to be made on declared or become effective as promptly as practicable (and in any event no later than 45 days after the Company’s receipt of notice of such demand from any Purchaser or Holder).
(ii) The Company shall not be required to effect a continuous basis pursuant registration with respect to Rule 415. The Registration Statement shall be on Form S-3 (except securities that are not Registrable Securities, or if the Company is not then eligible has notified the Purchasers and all other Holders that in the good faith judgment of its Board of Directors, it would be materially detrimental to register the Company or its securityholders for resale the Registrable Securities on Form S-3such registration to be effected at such time, in which case event the Company shall have the right to defer such registration for a period of not more than 90 days after receipt of the request of any Purchaser or any other Holder.
(iii) All Registration Expenses incurred in connection with any registration, qualification or compliance hereunder shall be borne by the Company. All Selling Expenses incurred in connection with any registrations hereunder shall be borne by the holders of the securities so registered pro rata on another appropriate form for such purpose). the basis of the aggregate offering or sale price of the securities so registered.
(iv) The Company shall use its commercially reasonable best efforts efforts, for so long as there are Registrable Securities outstanding, to cause the Registration Statement take such actions as are under its control to be declared effective not become an ineligible issuer (as defined in Rule 405 under the Securities Act no later than Act). In addition, whenever required to effect the Effectiveness Dateregistration of any Registrable Securities or facilitate the distribution of Registrable Securities pursuant to an effective Shelf Registration Statement or Demand Registration Statement, the Company shall, as expeditiously as reasonably practicable;
(1) furnish to the Holders and any underwriters such number of copies of the applicable registration statement and each such amendment and supplement thereto (including in each case all exhibits) and of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and shall use its reasonable best efforts such other documents as they may reasonably request in order to keep facilitate the Registration Statement continuously effective under the Securities Act until the date which is the earlier disposition of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold owned or to be distributed by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”)them.
(b2) If for any reason use its commercially reasonable efforts to register and qualify the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already securities covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration statement under such other securities or Blue Sky laws of such jurisdictions as shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under reasonably requested by the Securities Act as soon as possible butHolders or any underwriter, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under registration or qualification in effect for so long as such registration statement remains in effect, and to take any other action which may be reasonably necessary to enable such seller to consummate the Securities Act during its entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if disposition in such jurisdictions of the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required securities owned by Section 3(a) hereof, such Holder; provided that the Company shall not be deemed required in connection therewith or as a condition thereto to have satisfied this clause qualify to do business or to file a general consent to service of process in any such states or jurisdictions; and
(i)), or (ii3) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all notify each Holder of Registrable Securities to which it at any time when a prospectus relating thereto is required to cover at be delivered under the Securities Act of the happening of any time prior event as a result of which the applicable prospectus, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;
(4) give commercially reasonable written notice to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events Holders:
(A) when any such failure or breach being referred registration statement filed pursuant to as an “Event,” and for purposes of clauses (i) and (iiSection 5(b)(i) or any amendment thereto has been filed with the SEC (except for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid any amendment effected by the Purchaser filing of a document with the SEC pursuant to the Purchase Agreement from Exchange Act) and including when such registration statement or any post-effective amendment thereto has become effective;
(B) of any request by the Event Date but excluding SEC for amendments or supplements to any registration statement or the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence prospectus included therein or for additional information;
(C) of the Event Date and shall increase issuance by 0.50% per annum at the end SEC of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash any stop order suspending the effectiveness of any registration statement or through the issuance initiation of Additional Notes any proceedings for that purpose;
(as defined in D) of the Note), to receipt by the Purchaser on each monthly anniversary Company or its legal counsel of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than notification with respect to the initial Event Date thereof. Following suspension of the cure qualification of all Events, the accrual Common Shares for sale in any jurisdiction or the initiation or threatening of liquidated damages shall cease. The liquidated damages under this Section 2(cany proceeding for such purpose; and
(E) of the happening of any event that requires the Company to make changes in any effective registration statement or the prospectus related to the registration statement in order to make the statements therein not misleading (which notice shall be accompanied by an instruction to suspend the sole and exclusive remedy use of the Purchaser under this Agreement for an Event. Notwithstanding prospectus until the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiesrequisite changes have been made).
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Registration. (a1) On or prior Subject to the Filing Dateterms and conditions of this Agreement, the Company Corporation covenants and agrees that as promptly as reasonably practicable after the Closing Date (and in any event no later than the date that is 60 days after the Closing Date (the “Registration Deadline”)), the Corporation shall prepare have prepared and file filed with the Commission SEC a Shelf Registration Statement (defined below) covering the resale of all Registrable Securities not already covered by (or otherwise designate an existing and effective Shelf Registration Statement for an offering filed with the SEC to be made on a continuous basis pursuant cover the Registrable Securities), and, to Rule 415. The the extent the Shelf Registration Statement shall be on Form S-3 (except if the Company has not theretofore been declared effective or is not then eligible to register for resale automatically effective upon such filing, the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company Corporation shall use its reasonable best efforts to cause the such Shelf Registration Statement to be declared or become effective not later than the Registration Deadline and to keep such Shelf Registration Statement continuously effective and in compliance with the Securities Act and usable for resale of such Registrable Securities for a period from the date of its initial effectiveness until such time as there are no Registrable Securities remaining (including by refiling such Shelf Registration Statement (or a new Shelf Registration Statement) if the initial Shelf Registration Statement expires).
(2) Any registration pursuant to this Section 4.9(a) shall be effected by means of a shelf registration under the Securities Act no later than (a “Shelf Registration Statement”) in accordance with the Effectiveness Date, methods and shall use its reasonable best efforts to keep distribution set forth in the Shelf Registration Statement continuously effective under and Rule 415. If the Securities Act until the date which is the earlier Investor or any other holder of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities to whom the registration rights conferred by this Agreement have been publicly sold transferred in compliance with this Agreement intends to distribute any Registrable Securities by means of an underwritten offering it shall promptly so advise the Corporation and the Corporation shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 4.9(c); provided, that the Corporation shall not be required to facilitate an underwritten offering of Registrable Securities unless the expected gross proceeds from such offering exceed $10 million. The lead underwriters in any such distribution shall be selected by the Purchaser, or (iii) such time as all holders of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all a majority of the Registrable Securities to be included in distributed and be reasonably acceptable to the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness PeriodCorporation.
(c3) If: The Corporation shall not be required to effect a registration (including a resale of Registrable Securities from an effective Shelf Registration Statement) or an underwritten offering pursuant to this Section 4.9(a): (i) a Registration Statement is with respect to securities that are not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or Registrable Securities; (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, during any Scheduled Black-out Period; or (iii) if the Corporation has notified the Investor and all other Holders that in the good faith judgment of the Corporation’s Board of Directors, it would be materially detrimental to the Corporation or its security holders for such registration or underwritten offering to be effected at such time, in which event the Corporation shall have the right to defer such registration or underwritten offering for a period of not more than 45 days after receipt of the request of the Investor or any other Holder; provided that such right to delay a registration or underwritten offering shall be exercised by the Corporation (A) only if the Corporation has generally exercised (or is concurrently exercising) similar black-out rights against holders of similar securities that have registration rights and (B) not more than twice in any 12-month period and not more than 90 days in the aggregate in any 12-month period.
(4) Whenever the Corporation proposes to register any of its Effective Dateequity securities, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with registration pursuant to Section 6(c)4.9(a)(1) or a Special Registration, such Registration Statement ceases for any reason and the registration form to be effective and available filed may be used for the registration or qualification for distribution of Registrable Securities, the Corporation will give prompt written notice to the Purchaser as Investor and all other Holders of its intention to effect such a registration (but in no event less than ten days prior to the anticipated filing date) and (subject to clause (6) below) will include in such registration all Registrable Securities with respect to which it is required the Corporation has received written requests for inclusion therein within ten business days after the date of the Corporation’s notice (a “Piggyback Registration”). Any such person that has made such a written request may withdraw its Registrable Securities from such Piggyback Registration by giving written notice to cover at any time the Corporation and the managing underwriter, if any, on or before the fifth business day prior to the expiration planned effective date of its Effectiveness Periodsuch Piggyback Registration. The Corporation may terminate or withdraw any registration under this Section 4.9(a)(4) prior to the effectiveness of such registration, for an aggregate whether or not the Investor or any other Holders have elected to include Registrable Securities in such registration. “Special Registration” means the registration of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) equity securities and/or options or other rights in respect thereof solely registered on Form S-4 or Form S-8 (or successor form) and (ii) shares of equity securities and/or options or for purposes other rights in respect thereof to be offered to directors, members of clause (iii) the date on which such 20 Trading Day period is exceededmanagement, being referred to as “Event Date”)employees, thenconsultants, for so long as such event is within the Effectiveness Periodcustomers, liquidated damages will accrue based on the Purchase Price lenders or vendors of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but Corporation or Corporation Subsidiaries or in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than connection with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiesdividend reinvestment plans.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Samples: Investment Agreement (BNC Bancorp)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). ) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” in substantially the form attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the each Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the Effectiveness DateDate for such Registration Statement, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date on which is the earlier of (i) five years after the Effective Date, (ii) all securities under such time as all of the Registration Statement have ceased to be Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”). It is agreed and understood that the Company shall, from time to time, be obligated to file one or more additional Registration Statements to cover any Registrable Securities which are not registered for resale pursuant to a pre-existing Registration Statement.
(b) If for any reason Notwithstanding anything contained herein to the contrary, in the event that the Commission does not permit all limits the amount of Registrable Securities that may be included and sold by Holders in any Registration Statement, including the Initial Registration Statement, the Company may reduce the number of Registrable Securities included in such Registration Statement on behalf of the Holders in whole or in part (in case of an exclusion as to a portion of such Registrable Securities Securities, such portion shall be allocated pro rata among all holders of securities covered by such Registration Statement, which may include Persons who are not Holders party to this Agreement or the Loan Agreement, as amended through the date hereof, in proportion to the respective numbers of securities to be included in registered by each such Person over the total amount of securities to be registered on such Registration Statement filed pursuant to Section 2(aStatement) (the amount of such excluded Registrable Securities, the “Reduction Securities”), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then . In such event the Company shall prepare and file as soon as possible after give the date on which Holders prompt written notice of the number of such Reduction Securities excluded. The Company shall use its reasonable best efforts at the first opportunity that is permitted by the Commission shall indicate as being to register for resale the first date or time that such filing may be made, but in any event by its Filing Date, an additional Reduction Securities. Such new Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to shall be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Reduction Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). ) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” in substantially the form attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its the Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
