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
Sources: 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 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 ▇▇▇▇▇, 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
Sources: 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 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
Sources: Shares and Warrant Purchase Agreement (Xfone Inc), Shares and Warrant Purchase Agreement (Xfone Inc), Shares and Warrant Purchase Agreement (Xfone 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 (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
Sources: Securities Purchase Agreement (Daegis Inc.), Registration Rights Agreement (Daegis Inc.), Registration Rights Agreement (Unify Corp)
Registration. (a) On or prior At such time as the Company files a Registration Statement with respect to the Filing DateRights Offering, but in any event within ninety (90) days of the date hereof, the Company shall prepare and file with the Commission a Registration Statement covering on Form S-3 under the Securities Act registering the resale under Rule 415 under the Securities Act 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 415then outstanding. The Registration Statement shall be provide for the resale from time to time, and pursuant to any method or combination of methods legally available on Form S-3 (except if by the Stockholders of any and all Registrable Securities, such methods of distribution to be provided in writing to the Company is not then eligible no later than seven (7) days prior 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)effective date of the Registration Statement with the SEC. 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 ninety (90) days from the Effectiveness Datedate of filing, 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 for a period of five (i5) five years after the Effective DateRegistration Statement first becomes effective, (ii) subject to the terms of this Agreement. The Company shall promptly amend such Registration Statement from time as all of the to time to include any Registrable Securities have been publicly sold that are issued at any time after the original filing upon written notice to the Company by any Stockholder regarding the Purchaser, or (iii) request for registration of such time as all of the newly issued Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”)Securities.
(b) If for any reason the Commission SEC does not permit all of the Registrable Securities to be included in the a Registration Statement filed pursuant to Section 2(a), 1.2(a) or Section 1.3 below or for any other reason any all Registrable Securities then outstanding are not then included in a such an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as reasonably possible after the date on which the Commission SEC shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, made 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. Each such Registration Statement shall provide for the resale from time to time, and pursuant to any method or combination of methods legally available on Form S-3 (except if by the Holders of any and all Registrable Securities, such methods of distribution to be provided in writing to the Company is not then eligible no later than seven (7) days prior 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)effective date of the Registration Statement with the SEC. 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 for a period of five (5) years after 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 Securitiesfirst becomes effective.
(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
Sources: Securities Purchase Agreement (Patrick Industries Inc), Registration Rights Agreement (Tontine Capital Partners L P), Registration Rights Agreement (Tontine Capital Partners L P)
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
Sources: Contribution Agreement, Registration Rights Agreement (USA Compression Partners, LP), Contribution Agreement (USA Compression Partners, LP)
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, 2025 (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 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 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 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 2 contracts
Sources: Security Agreement (Trinity Biotech PLC), Security Agreement (Trinity Biotech PLC)
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 first such 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 cause any subsequent such Registration Statement to be declared effective under the Securities Act as set forth herein. . The Company shall use its reasonable 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 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 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 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 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 Laurus and confirmation by Laurus 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 delivered to Laurus within 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 2 contracts
Sources: Registration Rights Agreement (Veridium Corp), Registration Rights Agreement (Veridium 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, 2025 (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 2 contracts
Sources: Security Agreement (Trinity Biotech PLC), Security Agreement (Trinity Biotech PLC)
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
Sources: 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 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
Sources: Registration Rights Agreement (Dor Biopharma Inc), Registration Rights Agreement (Dor Biopharma 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
Sources: Shareholder Agreement (Genpact LTD), Shareholder Agreement (Genpact 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
Sources: Stock Option Agreement (Rental Service Corp), Stock Option Agreement (Nationsrent 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 purposein accordance herewith). The Company shall cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its reasonable best commercial 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 shall use its reasonable best 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 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 any 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 Registration Statement filed hereunder is not declared effective by the Commission on or prior to its required by the Effectiveness Date, or ; (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 (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 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 any of the NASDAQ SmallCap Market, the Nasdaq National Market, or the American Stock Exchange (any the "Trading Market"))(any such failure or breach being referred to as an “"Event,” " and for purposes of clauses clause (i) and ), (ii) or (v) 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 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 of issued and outstanding Preferred Stock. Such liquidation damages shall be paid not less than each thirty (30) days during an Event other than with respect to and within three (3) days following the initial date on which such Event Date thereof. Following has been cured by 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.
(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
Sources: Registration Rights Agreement (Laurus Master Fund LTD), Registration Rights Agreement (Cycle Country Accessories Corp)
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
Sources: Assignment and Assumption Agreement (Tilray, Inc.), Assignment and Assumption Agreement (Tilray, Inc.)
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 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 ▇-▇, ▇▇-▇, ▇▇-▇, or another appropriate form for such purpose)in accordance herewith, so as to permit the public offering and resale of the Registrable Securities. The Company shall cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its reasonable best commercial efforts to cause the Registration Statement to be declared effective under the Securities Act within 120 days or 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 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 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 45 days in the aggregate per year or more than 25 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 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 45day or 25 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 one percent (1.0%) 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 remaining principal balance amount of an the 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 ten (10) 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 2 contracts
Sources: Registration Rights Agreement (Powercold Corp), Registration Rights Agreement (Powercold Corp)
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
Sources: Redemption Rights Agreement (General Growth Properties Inc), Redemption Rights Agreement (General Growth Properties 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
Sources: Investment Agreement (Sterling Financial Corp /Wa/), Investment Agreement (Sterling Financial Corp /Wa/)
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
Sources: Registration Rights Agreement (Bluebook International Holding Co), Registration Rights Agreement (Bluebook International Holding Co)
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
Sources: 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 (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
Sources: Registration Rights Agreement (Cord Blood America, Inc.), Registration Rights Agreement (Cord Blood America, 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
Sources: Settlement Agreement (Trafelet Remy W), Settlement Agreement (Alico 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
Sources: Securities Purchase Agreement (Granite Partners, L.L.C.), Securities Purchase Agreement (Granite City Food & Brewery LTD)
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
Sources: Registration Rights Agreement (Act III Holdings LLC), Registration Rights Agreement (BJs RESTAURANTS 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
Sources: 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
Sources: Registration Rights Agreement (Magnetar Capital Partners LP), Registration Rights Agreement (Think Partnership Inc)
Registration. As soon as possible following the first Additional Closing Date (a) On or prior to but not later than the Filing Date), the Company shall prepare and file with the Commission a “shelf” Registration Statement covering for the resale of all or such maximum portion of the Registrable Securities as permitted by SEC Guidance (provided that the Company shall use diligent efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, the Manual of Publicly Available Telephone Interpretations D.29) that are not already covered by then registered on 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 or if such form is not available to the Company is not then eligible to register 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 use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no not later than ninety (90) days after the Effectiveness Date, and shall use its reasonable best efforts to keep Filing Date (including filing with 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 the Company shall prepare will not be “reviewed,” or not be subject to further review) 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) with respect to such Holder, such time as all Registrable Securities held by such Holder 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.
(c) If: (i) ”). The Company shall telephonically request effectiveness of a Registration Statement is not filed as of 5:00 p.m. New York City time on a Trading Day. The Company shall immediately notify the Holders via facsimile or prior to its Filing Date (if by e-mail of the Company files effectiveness of a Registration Statement without affording the Purchaser the opportunity to review and comment on the same Trading Day that the Company telephonically confirms effectiveness with the Commission, which shall be the date requested for effectiveness of such Registration Statement. The Company shall, by 9:30 a.m. New York City time on the Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Section 3(a) hereof, Rule 424. For purposes of the obligations of the Company shall not be deemed to have satisfied under this clause (i))Agreement, or (ii) a no Registration Statement shall be considered “effective” with respect to any Registrable Securities unless such Registration Statement lists the Holders of such Registrable Securities as “Selling Stockholders” and includes such other information as is required to be disclosed with respect to such Holders to permit them to sell their Registrable Securities pursuant to such Registration Statement, unless any such Holder is not declared effective by included as a “Selling Stockholder” pursuant to Section 3(m). Such Registration Statement also shall cover, to the Commission on or prior to its required Effectiveness Date, or extent allowable under the Securities Act and the Rules promulgated thereunder (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(cincluding Securities Act Rule 416), such Registration Statement ceases for any reason to be effective and available indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Purchaser as to all Registrable Securities to which it is required to cover at Securities. Notwithstanding the foregoing or any time prior other provision of this Agreement, and subject to the expiration payment 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 Section 7(e), if any SEC Guidance sets forth a limitation on the terms hereof shall apply number of Registrable Securities permitted to be registered on a particular Registration Statement (and notwithstanding that the Company used diligent efforts to advocate with the Commission for the registration of all or a greater portion of Registrable Securities), unless otherwise directed in writing by a Holder as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will first be reduced by the Common Stock underlying the Placement Agent Warrants and second by Registrable Securities represented by Warrant Shares (applied, in the case that some Warrant Shares may be registered, to the Holders on a pro rata basis for any portion based on the total number of a month unregistered Warrant Shares held by such Holders); provided, however, that, 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 any reduction in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities included in a Registration Statement as set forth in this sentence, the number of shares of Common Stock that are not Registrable Securities and which shall not be cutback under any have been included on such Registration Statements as a result of such piggy-back rightsStatement shall be reduced by up to 100%.
Appears in 2 contracts
Sources: Investor Rights Agreement (Access Pharmaceuticals Inc), Investor Rights Agreement (Sco Capital Partners LLC)
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
Sources: Securities Purchase Agreement (Emerge Interactive Inc), Registration Rights Agreement (Emerge Interactive Inc)
Registration. (a) On or prior Subject to the Filing Dateother applicable provisions of this Agreement, the Company shall prepare and file with file, as promptly as reasonably practicable, but no later than the Commission Filing Deadline, a Registration Statement 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”). 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 Securities Act and usable until the date which is the earlier of (i) five years after the Effective Date, (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) (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, as promptly as practicable, 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, as promptly as practicable, 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 is reasonably practicable after such filing, but in no event later than the date that is forty-five (45) days after such Subsequent Shelf Registration is filed and (ii) keep such Subsequent Shelf Registration (or another Subsequent Shelf Registration) continuously effective and usable until the end of the Effectiveness Period. 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. 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 cause such post-effective amendment to become effective under the 1933 Act as promptly as is reasonably practicable, but in any event by the date that is thirty (30) 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).
(f) Notwithstanding the registration obligations set forth in this Section 2, in the event the Commission informs the Company that all of the Registrable Securities cannot be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform in writing each of the Investors and use its reasonable best efforts to file amendments to the Resale Shelf Registration Statement as required by the Commission and/or (ii) withdraw the Resale Shelf Registration Statement and file as promptly as possible buta new registration statement (a “New Registration Statement”) on Form S-3, in any eventor if Form S-3 is not then available to the Purchaser for such registration statement, no later than its Effectiveness Dateon such other form available to register for resale the Registrable Securities as a secondary offering; provided, and however, that prior to filing such amendment or New Registration Statement, the Company 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 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 any publicly available written or oral guidance, comments, requirements or requests of the requirements Commission staff. Notwithstanding any other provision of piggy-back rights granted under predecessor agreementsthis Agreement, provided, that if the Commission imposes a limitation on the number of Registrable Securities shall not permitted to be cutback under any registered on a particular Resale Registration Statement as a secondary offering, unless otherwise directed in writing by an Electing Investor as to further limit its Registrable Securities to be included on the Registration Statement, the number of Registrable Securities to be registered on such Registration Statements Statement will be reduced pro rata among all such Electing Investors whose securities are included in such Resale Registration Statement, subject to a determination by the Commission that certain holders must be reduced first based on the number of Registrable Securities held by such holders. In the event the Company amends the Resale Shelf Registration Statement or files a New Registration Statement, as a result the case may be, under clauses (i) or (ii) above, the Company will use its reasonable best efforts to file with the Commission, as promptly as allowed by Commission provided to the Purchaser or to registrants of securities in general, one or more registration statements on Form S-3 or such piggy-back rightsother form available to register for resale those Registrable Securities that were not registered for resale on the Resale Shelf Registration Statement, as amended, or the New Registration Statement.
Appears in 2 contracts
Sources: Registration Rights Agreement (KCP Holdings LTD), Registration Rights Agreement (Triller Group Inc.)
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
Sources: Registration Rights Agreement (MGT Capital Investments Inc), Registration Rights Agreement (MGT Capital Investments 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
Sources: Registration Rights Agreement (China Biopharmaceuticals Holdings Inc), Registration Rights Agreement (China Biopharmaceuticals Holdings 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
Sources: Common Unit Purchase Agreement (Antero Midstream Partners LP), Registration Rights Agreement
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
Sources: Share Purchase Agreement, Share Purchase Agreement (Ark Pacific Investment Management LTD)
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 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 promptly as practicable 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 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 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 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) a the Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness DateDate or if by the Trading 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 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 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 in any 30-calendar day period, 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 with respect to Shares which have not yet been sold. 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 the 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 three Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 2 contracts
Sources: Registration Rights Agreement (Zf Partners Lp), Registration Rights Agreement (I Many 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
Sources: 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 (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
Sources: Securities Purchase Agreement (Airnet Communications Corp), Registration Rights Agreement (Airnet Communications Corp)
Registration. (a) On To the extent that a Registration Statement filed pursuant to Section 2(b) or prior a Shelf Registration Statement is not then effective covering the Registrable Securities that are the subject of the applicable Demand Registration, each Investor 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 ▇-▇, ▇-▇ or any successor form thereto with respect to a underwritten public offering of Registrable Securities (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the Filing Datenumber 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 10 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 ▇-▇, ▇-▇ 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 forty-five (45) 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 105th day (or 165th day if the Commission notifies the Company that it will “review” the Registration Statement) following the Closing Date and (ii) the 10th 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 of Registrable Securities 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.
(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 ▇-▇, ▇-▇ 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 ▇-▇, ▇-▇ 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 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 415 under the Securities Act as soon as possible but, in or any event, no later than its Effectiveness Date, and shall use its reasonable best efforts successor rule thereto (a “Shelf Registration Statement”) that covers all Registrable Securities then outstanding for an offering to keep such Registration Statement continuously effective be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act during its entire Effectiveness Period.
or any successor rule thereto (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.Shelf
Appears in 2 contracts
Sources: Registration Rights Agreement (System1, Inc.), Registration Rights Agreement (System1, Inc.)
Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the Commission a the Registration Statement 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 purposein accordance herewith). The Not less than ten business days prior to filing of the Registration Statement, the Company shall provide each Holder with a copy of the Registration Statement proposed to be filed and shall consider all appropriate comments that are timely provided by such Holder with respect to the Registration Statement. Subject to the terms of this Agreement, 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 as promptly as possible after the filing thereof, but in any event prior to 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 (i) five years after all Registrable Securities covered by the Effective DateRegistration Statement have been sold, or (ii) such time as all subject to the next successive sentence, (A) Hercules, together with any of its affiliates, owns less than 10% of the Registrable Securities have been publicly sold by the Purchaser, or issued and outstanding Common Stock and (iiiB) such time as all of the Registrable Securities may be sold pursuant to free of any restrictions under Rule 144(k) 144 (the “Effectiveness Period”). Upon the Registration Statement ceasing to be effective in connection with clause (ii) of this section, the Company shall take, at its sole expense, such further action, including the provision of a legal opinion, as any Holder may reasonably request from time to time to enable such Holder to sell the Registrable Securities without registration under the Securities Act.
(b) If for any reason The Company shall notify the Commission does not permit all Holders via facsimile or electronic mail of the Registrable Securities to be included in effectiveness 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 within three Trading Days of the Company shall prepare and file as soon as possible after telephonically confirming effectiveness with 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)Commission. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under shall, by 9:30 AM Eastern Time on the Securities Act as soon as possible but, in any event, no later than its Trading Day that is three Trading Days after the Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under file a Form 424(b)(5) with the Securities Act during its entire Effectiveness PeriodCommission.
(c) If: 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 Datewithin 250 days of September 13, 2010, or (iiiii) after its Effective Date, without regard for following the reason thereunder or efforts therefor other than a Suspension Event date in compliance with Section 6(cclause (i), such the Registration Statement covering the Registrable Shares 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 usable at any time prior during the Effectiveness Period (without being succeeded on the same date immediately by a post-effective amendment or supplement to the expiration Registration Statement that cures such failure and that is itself, in the case of its Effectiveness Perioda post-effective amendment, declared effective within ten Trading Days of filing with the Commission) or the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities for 20 consecutive Trading Days or in any individual case an aggregate of 20 30 Trading Days for all such events during any twelve-month period (which need not be consecutive Trading Days) (any such failure or breach of the foregoing being referred to as an a “Event,Registration Default” and for purposes of clauses clause (i) and (ii) the date on which such Registration Default occurs, or for purposes of clause (iiiii) the date on which such 20 or 30 Trading Day period period, as applicable, is exceeded, each being referred to as a “Event Registration Default Date”), ) then, for so long subject to Section 3, 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 a penalty (“Liquidated Damages”): (A) equal to $25,000 on the Purchase Price of Registration Default Date, and (B) on the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from 30th day thereafter 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 9030-day period until such Registration Default is cured, equal to $25,000 on each such date, provided, however, that the sum of such amounts shall not exceed $500,000. The foregoing represents the sole monetary remedy to any Holder in connection with any Registration Default. The Company shall pay the Holders any Liquidated Damages on the Registration default Date, the day that is 30 days thereof and at the end of each subsequent 30-day period. If the Company fails to pay any Liquidated Damages pursuant to this Section in full, but in no event shall such the Company will pay interest thereon at a rate exceed 1.00of 8% per annumannum (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 A Registration Default under clause (i) above shall be due cured on the date that the Registration Statement is filed with the SEC and payable in cash or through the issuance of Additional Notes a Registration Default under clause (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 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(c) above shall be cured on the sole and exclusive remedy of date that the Purchaser under this Agreement for an EventRegistration Statement covering the Permitted Shares is declared effective by the SEC or is otherwise usable. Notwithstanding the foregoing, no liquidated damages will accrue hereunder Liquidated Damages shall accumulate as to any Registrable Security from and after the Purchaser with respect to earlier of (x) the Primary Shares or Underlying Shares that are date such security is no longer a Registrable SecuritiesSecurity and (y) expiration of the Effectiveness Period.
(d) The Company shall not be liable for any Liquidated Damages under Section 2(c) if the Holders are not permitted to utilize the Prospectus because the Company is negotiating a merger, consolidation, acquisition or sale of all or substantially all of its assets or a similar transaction which, in the good faith judgment of the Board of Directors, requires the Registration Statements under this Section 2 may contain shares Statement to be amended to include information in connection with such pending transaction (including the parties thereto) and such information is not yet available or publicly disclosable, or the Company is otherwise aware of such other material non-public information which, in the good faith judgment of the Board of Directors, requires the Registration Statement to be amended to include such other material non-public information and such information is not yet publicly disclosable, for an aggregate of 30 consecutive days.
(e) Each Holder agrees to furnish to the Company (i) a completed selling stockholder questionnaire not more than Registrable Securities ten Trading Days before the filing of the Registration Statement and (ii) such other information the Company reasonably requires to prepare the Registration Statement. Each Holder further agrees that it shall not be entitled to be named as a selling stockholder in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that Registration Statement or use the number Prospectus for offers and resales of Registrable Securities shall not at any time, unless such Holder has returned this information to the Company. Each Holder acknowledges and agrees that the information in the selling stockholder questionnaire or request for further information as described in this Section 2(e) will be cutback under any such used by the Company in the preparation of the Registration Statements as a result Statement and hereby consents to the inclusion of such piggy-back rightsinformation in the Registration Statement.
Appears in 1 contract
Registration. (a) On The Company shall use its best efforts to prepare and file with the Commission as soon as possible following the Closing Date, but in any event on or prior to the Filing 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 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, (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 12d1-2 promulgated under the Securities Exchange 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 the Company shall prepare and file will not be "reviewed," or not be subject to further review) 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 madethereof, but in any event by its Filing Date, an additional Registration Statement covering prior to 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.
(c) If: (i) a "). 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 Stock into which the Purchaser Warrants are exercisable exceeds the opportunity to review and comment number of shares of Common Stock initially registered in respect of the Warrant Shares based upon the computation on the same as required by Section 3(a) hereofClosing Date, the Company shall not be deemed have twenty (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 is not to be 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 soon 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 periodpossible, 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 later than thirty (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 date30) 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 Securitiesdays after filing.
(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
Sources: Registration Rights Agreement (Speedcom Wireless 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 for so long as each day that an Event has occurred and is continuing, an amount in cash equal to one-thirtieth (1/30th) of the product of: (A) the then outstanding principal amount of the Note multiplied by (B) 0.02 (or, with respect to an Event of the type referred to in clause (ii) of this Section 2(b) that occurs in connection with the initial Registration Statement required to be filed hereunder, 0.015 for the first 30 day period following the applicable Effectiveness Date, and 0.02 thereafter).In the event the Company fails to make any payments pursuant to this Section 2(b) in a timely manner, such event is within payments shall bear interest at the rate of 1.5% per month (prorated for partial months) until paid in full.
(c) Within three business days of the Effectiveness PeriodDate, liquidated damages will accrue based on the Purchase Price 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 the affected Registrable Securities paid restrictive legend upon notice of 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
Sources: Minimum Borrowing Note Registration Rights Agreement (Farmstead Telephone 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-3S-3 in the future, in which case the Company shall file a post effective amendment to the registration statement on Form S-3 covering the Registrable Securities and shall use its commercially reasonable efforts to cause such registration shall Registration Statement to be on another appropriate form for such purposedeclared effective as promptly as practicable thereafter). .
(b) The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective by the Commission as soon as practicable (including filing with the Commission a request for acceleration of effectiveness in accordance with Rule 461 promulgated under the Securities Act no later than within five (5) Business Days after the Effectiveness Datedate 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 and the effectiveness of the Registration Statement may be accelerated) 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 of: (i) five years after the Effective Date, (ii) such time as date that 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 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 and the affected Holders and (ii) the date which is the second anniversary of the date in which the Registration Statement was declared effective by the Commission (the “Effectiveness Period”).
. Such Registration Statement shall also cover, to the extent allowable under the Securities Act and the rules promulgated thereunder (b) If for any reason the Commission does not permit all including Rule 416), such indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or similar transactions with respect to 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 Securities. It is agreed and understood that the Company shall prepare and shall, from time to time, be obligated to 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 to cover any Registrable Securities which are not already covered by an existing and effective Registration Statement registered for an offering to be made on a continuous basis resale 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 a pre-existing 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 PeriodStatement.
(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))Date, or (ii) a if such Registration Statement is has not been declared effective by the Commission on or prior to its required Effectiveness within ninety (90) days of the Filing 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), Date 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 20 consecutive Trading Days or an aggregate of 20 50 Trading Days for all such events (any which need not be consecutive)(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 consecutive or 50 Trading Day period (as applicable) is exceeded, being referred to as “Event Date”), thenthen in addition to any other rights available to the Holders: on 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 two percent (2%) of the affected Registrable Securities aggregate Subscription 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 remedy 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 be exclusive of 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 remedies available 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 Each Holder shall furnish to the Company a completed Questionnaire in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that form as provided by the number of Registrable Securities Company (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 ten Trading Days prior to the Filing Date.
Appears in 1 contract
Sources: Registration Rights Agreement (Lifesciences Opportunities 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
Sources: Registration Rights Agreement (Lone Oak Acquisition Corp)
Registration. (a) On or prior to the each 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 contain (except if otherwise required pursuant to written comments received from the Company is not then eligible to register for resale SEC upon a review of such Registration Statement) the Registrable Securities on Form S-3, “Plan of Distribution” in which case such registration shall be on another appropriate the form for such purpose). 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 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 fifth year after the Effective Date, (ii) date that the Registration Statement is declared effective by the SEC or such time as earlier date 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 SEC does not permit all of the Registrable Securities to be included in the a Registration Statement filed pursuant to Section 2(a), 2.2(a) or for any other reason any all Registrable Securities then outstanding are not then included in a such an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as reasonably possible after the date on which the Commission SEC shall indicate as being the first date or time that such filing may be made, but in any event by its the Filing DateDate therefore, 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 SEC 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) hereofsame, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission SEC on or prior to its required Effectiveness Date, or (iii) after its Effective Datethe date that such Registration Statement is declared effective by the SEC, 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 that 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 trading days (which need not be consecutive) during any 18-month period (the parties understand that any unused days in a particular period may not be carried forward to any subsequent 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 Trading Day trading day-period is exceeded, being referred to as an “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% of the aggregate Purchase Price of the affected Registrable Securities paid by the Purchaser such Holder for Shares pursuant to the Securities 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 Purchase Price paid by such Holder for Shares pursuant to the Securities 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 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 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 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 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 45 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 45 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 1.5% 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 Securities 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, except in the case of the first Event Date. Notwithstanding the other than with respect to provisions of this Section 2, in no event shall the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The Company be liable for partial liquidated damages under this Section 2(c2(d) shall be the sole and exclusive remedy to any Holder in excess of 10.5% of the Purchaser under this Agreement Investment Amount paid by such Holder for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder Securities pursuant to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable SecuritiesPurchase Agreement.
(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
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 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 Registration Statement to be declared effective as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor.
(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 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 45 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 45 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. 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, except in the case of the first Event other than with respect Date.
(c) Each Holder agrees to furnish to the initial Event Date thereof. Following Company a completed Questionnaire in the cure of all Events, the accrual of liquidated damages shall ceaseform 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 Statement and shall not be required to pay any liquidated or other 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 any Holder who fails to furnish to the Purchaser with respect Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
Filing Date (d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with subject to 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 rightsset forth in Section 3(a)).
Appears in 1 contract
Sources: Registration Rights Agreement (International Displayworks 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 on Form S-3SB-2, 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) 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 four 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 on Form S-3SB-2, 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 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 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)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; provided, that the liquidated damages payable under this section shall be capped for any Investor at 10% of such Investor's Investment Amount (which cap shall not affect such Investor's right to seek other available remedies). 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
Sources: Registration Rights Agreement (Electronic Control Security 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 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 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 applicable 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 of (i) five two years after from the Effective Datedate the Registration Statement was declared effective, (ii) such time as the date when all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Purchaser, or (iii) such time as the date when 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 “each, an "Effectiveness Period”"); provided, however, that the Company may postpone the filing of any Registration Statement and suspend the effectiveness of any Registration Statement, suspend the use of any Prospectus and shall not be required to amend or supplement any Registration Statement, any related Prospectus or any document incorporated therein by reference, for a period not to exceed an aggregate of 90 days (a "Black Out Period") in the event that (1) an event or circumstance occurs and is continuing as a result of which such Registration Statement, any related Prospectus or any document incorporated therein by reference as then amended or supplemented would, in the good faith judgment of the Board of Directors of the Company, 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 provided, further, that each Effectiveness Period shall be extended by the number of days in any Black Out Period occurring during such Effectiveness Period. In the event of the occurrence of any Black Out Period, the Company will promptly notify the Holders of Registrable Securities thereof in writing. The Company shall not effect more than one Black Out Period pursuant to the terms hereof in any consecutive 365 day 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 Subject to Section 2(a)) with respect to a Black Out 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 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) Ifif: (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 90 days in the aggregate per year or more than 20 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 (provided the Company shall not have been able to cure such trading suspension within 30 days of the notice thereof or list the Common Stock on another Trading Days for all such events 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 Trading Day 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 1.0% 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 the Term Note and each applicable Minimum Borrowing 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 Laurus and confirmation by Laurus 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 delivered to Laurus within 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
Sources: Registration Rights Agreement (Gvi Security Solutions Inc)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission 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” disclosure 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 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(k144(e) 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”). 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 Statements (whether or not such filling 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” disclosure 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 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 Statements (whether or not such filling 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 Registration Securities for resale, the Company shall file a Registration Statement on Form S-3 covering all such Registration 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 and declared effective under the Securities Act as soon as possible thereafter, but in any event prior to the Effective Date therefore, 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 keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period.
(cd) If: (i) a Registration Statement is not filed on or prior to its Filing Date covering the Registration 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) (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)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 thirty (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 thirty (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 and not as a penalty, equal to 1% (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 Securities 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% (subject to reduction as provided in the following sentence) of the aggregate investment amount paid by such Holder for Shares pursuant to the Securities Purchase Agreement. 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 6% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Securities 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 5% 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) In the event the number of shares available under a Registration Statements under this Section 2 may contain shares other than Statement filed is insufficient to cover all of the Registrable Securities required to be covered by such Registration Statement or an Investor’s allocated portion of the Registrable Securities, the Company shall amend the applicable Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover at least the required registration amount as of the Trading Day immediately preceding the date of the filing of such amendment or new Registration Statement, in accordance with each case, as soon as practicable, but in any event not later than fifteen (15) days after the requirements necessity therefore arises. The Company shall use its reasonable best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. For purposes of piggy-back rights granted the foregoing provision, the number of shares available under predecessor agreements, provided, that a Registration Statement shall be deemed “insufficient to cover all of the Registrable Securities” if at any time the number of shares of Common Stock available for resale under such Registration Statement is less than the number of Registrable Securities Securities. The calculation set forth in the foregoing sentence shall be made without regard to any limitations on the exercise of the Warrants and such calculation shall assume that the Warrants are then exercisable into shares of Common Stock.
(f) 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 ten 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 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" substantially in 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 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 years second year after the Effective Date, (ii) date that the Registration Statement is declared effective by the Commission or such time as earlier date 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”"EFFECTIVENESS PERIOD"). The initial Registration Statement shall include a number of Registrable Securities equal to the sum of (a) the number of Common Shares issuable upon an assumed conversion in full of the Series C Preferred Stock and (b) the number of shares of Common Stock issuable upon exercise in full of the Warrants.
(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 all Registrable Securities then outstanding are not then included in a 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 the Filing DateDate therefor, 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 Effective 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) IfSubject to the provisions of Section 4, 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 registered under such Registration Statement at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events Period (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 exceeded, Event occurs being referred to as “Event Date”an "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 under the Transaction Documents or under applicable law or at equity: 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, and on the same day as such Event Date thereof (if the applicable Event shall not have been cured by such date) in each subsequent month until the applicable Event is curedcured (the Event Date and each such subsequent date, a "PAYMENT DATE") the Company shall pay to each Holder an amount, as partial liquidated damages and not as a penalty, equal to 1.5% of the aggregate amount of the redemption price of the Shares under the Company's Articles of Incorporation, as amended. 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 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 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) or fails to deliver comments 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 rightsSection 3(a)).
Appears in 1 contract
Sources: Registration Rights Agreement (Midwood Capital Management LLC)
Registration. (a) On The Buyers and Broker acknowledge that the Company is delinquent in its reporting obligations under the Securities Exchange Act of 1934, as amended (the “1934 Act”) as specified in Section 2(k) of the Securities Purchase Agreement and that prior to filing a Registration Statement the Company must cure such delinquency. The Company shall use its best efforts to cause such delinquency to be cured on or prior to September 30, 2006; provided, that the Filing DateCompany shall have a three month grace period within which to cure the deficiency for purposes of Section 2(b), and, for purposes of Section 2(b), December 31, 2006 is the “Cure Deadline.” Promptly after curing such delinquency, the Company shall prepare and file with the Commission SEC a Registration Statement or Registration Statements (as is necessary) 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 of the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose)Securities. The Company shall use its reasonable best efforts to cause the such Registration Statement Statement(s) to be declared effective under by the Securities Act SEC as soon as possible, but in no event later than 45 days after such delinquency is cured if the Effectiveness Date, and shall use its reasonable best efforts to keep SEC notifies the Company that the Registration Statement continuously is cleared to become effective under and will not be reviewed by the Securities Act until the date which is the earlier of (i) five years SEC, or 120 days after the Effective Datedelinquency is cured if the SEC determines to review the Registration Statement (such 45 or 120 day deadline, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaserapplicable, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness PeriodDeadline”).
(b) If the Company fails to cure its delinquency on or prior to the Cure Deadline, then, as relief for the damages to any Investor by reason of any such delay in or reduction of its ability to sell its Registrable Securities, the Commission does Company shall pay to each Buyer an amount in cash, as partial liquidated damages and not permit as a penalty, equal to 5% of the Purchase Price paid by such Buyer under the Securities Purchase Agreement (the “Delinquency Damages”).
(c) If a Registration Statement covering all of the Registrable Securities and required to be included in filed by the Registration Statement filed Company 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 Agreement is not declared effective by the Commission SEC on or prior to its required before the applicable Effectiveness DateDeadline, or (iii) after its Effective Datethen, without regard as relief for the damages to any Buyer by reason thereunder of any such delay in or efforts therefor other than reduction of its ability to sell the underlying shares of Common Stock, the Company shall pay to each Buyer, as partial liquidated damages and not as a Suspension Event penalty, an amount in compliance with Section 6(c), cash equal to 2% of the Purchase Price paid by such Buyer under the Securities Purchase Agreement for each consecutive 30-day period following such Effectiveness Deadline during which such Registration Statement ceases for any reason to be effective and available to has not been declared effective, (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 DateDamages”), 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 provisions 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(d), 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 The aggregate Effectiveness Damages, together with any Delinquency Damages, payable by the Company shall in no event exceed 13% of the aggregate Purchase Price under the Securities Purchase Agreement. For avoidance of doubt, in no event shall any Delinquency Damages, Effectiveness Damages, or any other damages or penalty in connection with the failure of the Company to meet the Cure Deadline or Effectiveness Deadline, be payable by the Company to the Broker.
(e) Notwithstanding any other provision of this Agreement, the Company may, at its option, pay any portion of any Delinquency Damages or Effectiveness Damages in shares of its Common Stock rather than in cash, based on the per share market value of the Common Stock, provided that any such shares shall be deemed Registrable Securities and shall be required to be registered hereunder as any other Registrable Securities. For purposes of this Section 2 may contain shares other than 2(e), the per share market value of the Common Stock as of a particular payment date is the average of the closing prices of Common Stock on the OTC Bulletin Board for the 10 consecutive trading days ending on the first trading day prior to the particular payment date.
(f) To the extent any Investor is deemed an “underwriter” for purposes of the 1933 Act, the Company may, at its option, separate the Registrable Securities included in accordance any Registration Statement into a resale registration and a primary offering registration. Alternatively, the Company shall have the option to prepare separate a Registration Statement to be used with respect to the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under of any such Registration Statements as a result of such piggy-back rightsInvestor who is deemed an underwriter.
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 first such 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 cause any subsequent such 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 sixty (60) days after the filing thereof. The Company shall use its reasonable 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 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 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 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 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 this Section 2(c) as of the date when an Event has been cured by the Company shall be paid within three (3) days following the sole and exclusive remedy of date on which such Event has been cured by 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.
(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 With respect to the Registrable Securities issued pursuant to Section 3.2(b) of the Purchase Agreement, within thirty (30) days of the date hereof (the “Filing Date”), the Company shall use its commercially reasonable efforts to prepare and file with the Commission a Registration Statement “resale” registration statement covering the resale of all such 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 415415 under the Act. The Registration Statement Such registration statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the such 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 also use its commercially reasonable best efforts to cause the Registration Statement to be have such registration statement declared effective under within 60 days from the Securities Act no later than Filing Date. In 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 event any shares of (i) five years after the Effective Date, (ii) such time as all Company Common tock are issued in respect of the Registrable Securities have been publicly sold Shares by way of stock split, dividend or other distribution, recapitalization or otherwise, the Purchaser, or (iii) Company shall promptly amend the registration to include such time as all of newly issued shares to the Registrable Securities may be sold pursuant extent such amendment is necessary to Rule 144(k) (the “Effectiveness Period”)include such issued shares in such registration statement.
(b) If for any reason the Commission does not permit all of With respect to the Registrable Securities to be included in the Registration Statement filed issued pursuant to Section 2(a3.3(d) or Section 3.3(e) of the Purchase Agreement, if any, within thirty (30) days of the date of issuance of such Registrable Securities (the “Second Filing Date”), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall use its commercially reasonable efforts to prepare and file as soon as possible after the date on which with the Commission shall indicate as being the first date or time that a “resale” registration statement covering all 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, 415 under the Act. Such registration statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the such 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 also use its commercially reasonable best efforts to cause each such Registration Statement to be have the registration statement declared effective under within 60 days from the Securities Act as soon as possible butSecond Filing Date. In the event any shares of Company Common tock are issued in respect of the Additional Shares by way of stock split, dividend or other distribution, recapitalization or otherwise, the Company shall promptly amend the registration to include such newly issued shares to the extent such amendment is necessary to include such issued shares 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 statement.
(c) IfShareholder acknowledges and understands that: (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 register only the Registrable Securities in fulfillment of its obligations to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by register 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 Registrable Securities pursuant 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) Purchase Agreement; and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred Company shall be under no additional obligation 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 register any other securities of the affected Registrable Securities paid Company 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 curedany Holder, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence including, without limitation, options or other rights 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), Shareholder 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 acquire securities 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.
(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
Sources: Registration Rights Agreement (Fibernet Telecom Group Inc\)
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 Section 2(d) to a 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)).
(f) Notwithstanding anything to the contrary contained herein, the obligations of the Company under this Agreement, including, without limitation, its obligation to file or cause to be effective any such Registration Statements as a result Statement or Prospectus or amendments or supplements thereto, shall immediately terminate if, within the 90-day period following the date hereof, the Company de-registers its Common Stock under the Exchange Act and terminates the quotation of such piggy-back rightsits Common Stock on the OTC Bulletin Board.
Appears in 1 contract
Sources: Registration Rights Agreement (Organic to Go Food CORP)
Registration. (a) On or prior to the each Filing Date, the Company shall will use reasonable best 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), including Form S-1) 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 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 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(c) (the “Effectiveness Period”). In addition, the Company will, promptly and from time to time, use reasonable best 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 reasonable best 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 its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act at all times during 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 actual notice; and provided further, that if the Registration Statement is on Form S-1, the Effectiveness Period shall not include (and the Company shall not be required to keep the Registration Statement effective during) any period commencing on the date an amendment to the Registration Statement is required to be filed, or has been filed and the amended Registration Statement not yet declared effective by the Commission, to update information as a result of the filing by the Company of an Annual Report on Form 10-K or any other material development that would require, in the reasonable judgment of legal counsel to the Company or upon advice from the staff of the Commission, an amendment to such Registration Statement, provided (i) any required amendment to the Registration Statement is filed promptly by the Company, (ii) any comments of the staff of the Commission with respect to such amended Registration Statement are addressed promptly by the Company and (iii) a request for declaration of effectiveness of such amended Registration Statement is requested by the Company for a date which is not more than five (5) Trading Days following the date of receipt of notice or other communication from the staff of the Commission that it has no further comments to the amended Registration Statement (such period, until such amended Registration Statement is declared effective by the Commission, being herein referred to as an “S-1 Amendment Period”).
(b) If the Company at any time during a period the Registration Statement is effective reasonably determines in good faith and in its entire Effectiveness reasonable judgment, and based on the advice of outside legal counsel, that (i) the ongoing registration would be reasonably likely to materially interfere with a bona fide business or financing transaction of the Company, would require premature disclosure of information (the premature disclosure of which could materially and adversely affect the Company) or would otherwise be seriously detrimental to the Company or (ii) that the Registration Statement is subject to a stop order, is no longer effective or is otherwise not Available for use, the Company may suspend sales of securities pursuant to the Registration Statement for a period of not more than seventy five (75) consecutive calendar days or an aggregate of one hundred twenty (120) days in any twelve month period (a “Black-Out Period”) and agrees to (i) furnish to each Holder a certificate signed by an officer of the Company to that effect and (ii) notify each Holder promptly upon each of the commencement and termination of each Black-Out Period. Each Holder agrees that, upon any such notice from the Company, it will forthwith discontinue disposition of Registrable Securities pursuant to the Registration Statement until receipt of the Company’s notice as to the termination of the Black-Out Period. Each of the Holders agree to keep the notice of Black-Out Period confidential and shall not disclose such notice or reasons to any Person other than such Holder’s legal counsel or as required by law. For the avoidance of doubt, an S-1 Amendment Period shall not be considered a Black-Out 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 registration rights granted under this Section 2 may contain shares other than shall automatically terminate at such time as there are no outstanding 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 rightsSecurities.
Appears in 1 contract
Sources: Registration Rights Agreement (Gastar Exploration 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 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) and 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 by its required 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 1% 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.
(dc) The Company will file additional 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 if the number of Registrable Securities at any time exceeds 85% of the number of shares of Common Stock then registered in a Registration Statement. Such additional Registration Statement shall cover the resale by the Holders of not be cutback under any less than 110% of the number of shares required in order that all Registrable Securities outstanding and issuable upon exercise of the Warrants relating to such Registration Statements as a result of such piggy-back rightsStatement would then be registered.
Appears in 1 contract
Sources: Registration Rights Agreement (Storage Computer Corp)
Registration. (a) On or prior to the 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 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. 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 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 (i) five two years after the Effective Date, Closing Date or such earlier date when all Registrable Securities covered by the Registration Statement (iia) such time as all have been sold pursuant to the 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 without volume restrictions 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 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 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)); provided, however, that if a Holder fails to provide the Company with any information that is required to be provided in the Registration Statement with respect to such Holder pursuant to Section 3(k), then the Filing Date shall be extended until two Trading Days following the date of receipt by the Company of such required information, 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 a Registration Statement will not be "reviewed," or not subject to further review, or (iii) 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 (iv) 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 (iiiv) 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 an aggregate of 20 in any such cases ten 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 (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 which such ten Trading Day period is exceeded, or for purposes of clause (v) the date on which such 20 ten Trading 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, liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 2% of the affected Registrable Securities aggregate purchase price paid by the Purchaser such Holder pursuant to the Purchase Agreement from for any Registrable Securities then held by such Holder; 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 for any Registrable Securities then held by such Holder. 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
Sources: Registration Rights Agreement (Advanced Magnetics 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 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 a Discontinuation Event (as hereafter defined) shall occur and be continuing (but not including a Discontinuation Event described in clause (i) or (ii) of the reason thereunder or efforts therefor other than a Suspension definition of "Discontinuation Event" below to the extent that the shares of Common Stock registered pursuant to such Registration Statement subject of such Discontinuation Event in compliance with Section 6(cshall remain freely tradeable by the Holder despite the occurrence of such Discontinuation Event), or 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 for so long as each day that an Event has occurred and is continuing, an amount in cash equal to one-thirtieth (1/30th) of the product of: (A) the original principal amount of each Minimum Borrowing Note outstanding at such time multiplied by (B) 0.015. In the event is within the Company fails to make any payments pursuant to this Section 2(b) in a timely manner, such payments shall bear interest at the rate of 1.5% per month (prorated for partial months) until paid in full.
(b) Within three business days of the Effectiveness PeriodDate, liquidated damages will accrue based on the Purchase Price 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 the affected Registrable Securities paid restrictive legend upon notice of 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 within the time frame set forth above.
(c) At reasonable intervals, the Company may require each Holder of Registrable Securities as to which any registration is being effected to furnish to the Company, within ten calendar days after written request therefor has been made by the Company, such information regarding the distribution of such Holder's Registrable Securities as is required by law to be disclosed in the Registration Statement (the "Requisite Information").
(i) The Company shall file prospectus supplements pursuant to Rule 424 under the Securities Act (or any successor provision thereto) to supplement the Prospectus, or, if necessary, amend the applicable Registration Statement, to include in the Prospectus the Requisite Information as to each Holder (and the Registrable Securities held by such Holder) that provides notice to the Company of the Requisite Information. The Company shall file such a prospectus supplement with the Commission no less than once every twenty business days if during such period the Company receives notice from any Holder which includes the Requisite Information with respect to any such Holder. The Company shall provide each Holder a copy (or, to any Holder, such larger number of copies as such Holder shall request) of such Prospectus as so supplemented, or included in an amended Registration Statement, containing the Primary Shares or Underlying Shares that are no longer Requisite Information within three business days of filing such Prospectus with the Commission in order to permit such Holder to comply with the prospectus delivery requirements of the Securities Act in a timely manner with respect to any proposed disposition of such Holder's Registrable Securities.
(dii) Registration Statements under No Holder shall be entitled to use the Prospectus, if such Holder shall have failed to furnish the information required by this Section 2 may contain shares other than Registrable Securities 2(c) in accordance with the requirements of piggy-back rights granted first or second paragraph hereof, and such information with respect to such Holder shall have been included in the Prospectus, unless the Company shall have failed timely to fulfill its obligations under predecessor agreementsthis Section. If any information furnished to the Company by a Holder for inclusion in a Registration Statement or the Prospectus becomes materially misleading, provided, that such Holder agrees (i) to furnish promptly to the number of Company all information required to be disclosed in such Registration Statement in order to make the information previously furnished to the Company not materially misleading and (ii) to stop selling or offering for sale Registrable Securities pursuant to the Registration Statement until such Holder's receipt of the copies of a supplemented or amended Prospectus correcting such disclosure. The Company shall have no obligation to keep a Prospectus usable with respect to a particular Holder or to give notice that a Prospectus is not be cutback under any usable by such Registration Statements as a result of Holder to the extent such piggy-back rightsProspectus is not usable by such Holder because current Requisite Information with respect to such Holder is not included therein because such Holder has not provided such information to the Company in accordance with this Section 2(c).
Appears in 1 contract
Sources: Minimum Borrowing Note Registration Rights Agreement (Integrated Security Systems Inc)
Registration. (a) On The Company will file or cause to be filed with the Securities and Exchange Commission on or prior to the Filing Date, date that is ninety (90) days after the Company shall prepare and file with the Commission date hereof 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 registration statement on Form S-3 (except or Form S-1, if a Form S-3 shelf registration is unavailable to the Company is not then eligible Company) (the "Registration Statement") to register for resale cover re-sales of the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose)Securities. The Company shall use its reasonable best efforts to (x) 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 butpracticable thereafter, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts (y) to keep such Registration Statement continuously effective under effective, supplemented and amended to the extent necessary to comply with the provisions of 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 thereofdisposition of all the Registrable Securities for a period ending one year following the date hereof, and (z) to cause such Registrable Securities to be qualified in such jurisdictions as the Holder may reasonably request. Notwithstanding anything herein to the contrary, in the event of a material development or transaction, or the occurrence of a material event, affecting the Company that has not yet been publicly disclosed, if the Board of Directors of the Company shall determine in good faith that it would not be in the best interest of the Company to make such disclosure at such time, the Company may so notify the Holder of Registrable Securities (such notice being referred to herein as a "Deferral Notice") and shall thereafter be entitled to defer preparing and furnishing such supplement or amendment until such time as the Company determines such disclosure should be made, at which time it shall so notify such Holder and shall prepare and furnish to such Holder any such supplement or amendment as may then be required. Following the cure receipt of all Eventsany supplement or amendment to any prospectus, the accrual Holder of liquidated damages Registrable Securities shall ceasedeliver such amended, supplemental or revised prospectus in connection with any offers or sales of Registrable Securities, and shall not deliver or use any prospectus not so amended, supplemented or revised. The liquidated damages under this Section 2(c) Following receipt of a Deferral Notice, the Holder of Registrable Securities shall be not make any further sales of Registrable Securities pursuant to the sole Registration Statement until such Holder receives such notice, and exclusive remedy of any such amendment or supplement, from the Purchaser under this Agreement for an EventCompany, or until such Holder receives notice from the Company that no such amendment or supplement is required. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to Company may not suspend use by 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 Holder of Registrable Securities shall not be cutback under any such of the Registration Statements as a result Statement for sales of such piggyRegistrable Securities for a period exceeding thirty (30) days in any consecutive twelve-back rightsmonth period.
Appears in 1 contract
Sources: Warrant Agreement (Adaptec Inc)
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 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 purposein accordance herewith). The Company shall (i) not permit any securities other than the Registrable Securities to be included in the Registration Statement and those securities on Schedule 7(c) hereto, (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 12dl-2 promulgated under the Securities Exchange 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 the Company shall prepare and file will not be "reviewed," or not be subject to further review) 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 madethereof, but in any event by its Filing Date, an additional Registration Statement covering prior to 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.
(c) If: (i) a "). 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 Warrant Shares exceeds the Purchaser number of shares of Common Stock initially registered in respect of the opportunity to review and comment Warrant Shares based upon the computation on the same as required by Section 3(a) hereofClosing Date, the Company shall not be deemed have twenty (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 is not to be 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 soon 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 periodpossible, 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 later than thirty (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 date30) 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 Securitiesdays after filing.
(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
Sources: Registration Rights Agreement (Virtual Communities Inc/De/)
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 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 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. 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 10% 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 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 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 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: (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. 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 10% 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 aggregate Investment Amount that is attributable to any Registrable Securities that are sold prior to an Event Date. 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, the The Company shall prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities that are not already covered by then registered on an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, which Registration Statement shall only register the resale of secondary securities and, for the avoidance of doubt, shall not register the primary sale of securities by the Company. The Registration Statement filed 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) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such purpose). 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 a Registration Statement filed under this Agreement to be declared effective under the Securities Act promptly but, in any event, no later than the Effectiveness DateDate for such Registration Statement, and shall shall, subject Section 7(c) hereof, 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) 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”). Notwithstanding the foregoing, upon reasonable notice to the Holders, the Company shall be entitled to suspend the effectiveness of the Registration Statement at any time prior to the expiration of the Effectiveness Period for up to an aggregate of 45 Trading Days in any given 360-day 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, 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 whole or in part (in case of an exclusion as to a portion of such Registrable Securities, such portion shall be allocated pro rata among such Holders in proportion to the respective numbers of Registrable Securities represented by Shares requested to be included in registered by each such Holder over the Registration Statement filed pursuant to Section 2(a), or for any other reason any total amount of Registrable Securities are not included in a Registration Statement filed under this Agreementrepresented by Shares) (such Registrable Securities, then the “Reduction Securities”). In such event the Company shall prepare give the Holders prompt notice of the number of such Reduction Securities excluded and file as soon as possible after the date on which Company will not be liable for any damages under this Agreement in connection with the exclusion of such Reduction Securities. The Company shall use its commercially reasonable 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 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 its the 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, subject to Section 7(c) hereof. Notwithstanding the foregoing, the Company shall be entitled to suspend the effectiveness of such Registration Statement concurrently with any suspension pursuant to Section 2(a).
(c) If: 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 Initial Registration Statement is not declared effective by the Commission (or otherwise does not become effective) on or prior to its required the Effectiveness Date, or (iiiii) after its Effective Datethe date it is declared effective by the Commission and, without regard for the reason thereunder or efforts therefor other than a Suspension Event except as provided in compliance with Sections 2(e) and (f) and Section 6(c3(h), such Registration Statement ceases for any reason (including without limitation by reason of a stop order, or the Company’s failure to be update the Registration Statement), to 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 Period, included in such Registration Statement for more than an aggregate of 20 forty-five (45) Trading Days for all such events in any given 360-day period (other than as a result of a breach of this Agreement by a Holder), or (iii) the Company fails to satisfy the current public information requirement pursuant to Rule 144(c)(1) as a result of which the Holders who are not affiliates are unable to sell Registrable Securities without restriction under Rule 144 (or any successor thereto), (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) iii), the date on which such Event occurs, or for purposes of clause (iii) ii), the date on which such 20 forty-five (45) Trading Day period is exceeded, being referred to as an “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 earlier of (1) the applicable Event is curedcured or (2) the Registrable Securities are eligible for resale pursuant to Rule 144 without manner of sale or volume restrictions or the current public information requirement, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to one percent (1%) of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any unregistered Registrable Securities then held by such Holder. The liquidated damages parties agree that (1) notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable with respect to any period after the expiration of the Effectiveness Period (except in respect of an Event described in Section 2(c)(iii) herein), (it being understood that this sentence shall not relieve the Company of any Liquidated Damages accruing prior to the Effectiveness Deadline) and in no event shall, the aggregate amount of Liquidated Damages (excluding Liquidated Damages payable in respect of an Event described in Section 2(c)(iii) herein) payable to a Holder exceed, in the aggregate, three percent (3%) of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement) and (2) in no event shall the Company be liable in any forty-five (45) day period for Liquidated Damages under this Agreement in excess of one percent (1%) of the aggregate purchase price paid by the Holders pursuant to the Purchase Agreement. The 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 liquidated damages under this Section 2(c) Company shall not be the sole and exclusive remedy of the Purchaser liable for Liquidated Damages under this Agreement for an Eventas to any Registrable Securities which are not permitted by the Commission to be included in a Registration Statement. Notwithstanding In such case, the foregoing, no liquidated damages will accrue hereunder Liquidated Damages shall be calculated to only apply 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 percentage of Registrable Securities which are permitted to be included in such Registration Statement. 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 a Purchaser 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 Securities Act (in which the Effectiveness Deadline would be extended with respect to Registrable Securities shall not be cutback under any held by such Registration Statements as a result of such piggy-back rightsPurchaser).
Appears in 1 contract
Sources: Registration Rights Agreement (Caladrius Biosciences, 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 or Form 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) (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 or Form 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 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, by its Effectiveness Date, and shall use commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act during 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 (but in no event later than 30 days), 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 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.
(cd) 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))Date, 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 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 datepro rated for partial months) until the applicable Event is cured. The , 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 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 SecuritiesPurchase Agreement.
(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”) within five Trading Days after a request therefor. 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 timely furnish to the Company a result of such piggy-back rightsfully completed Selling Holder Questionnaire.
Appears in 1 contract
Sources: Registration Rights Agreement (Worldgate Communications 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 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)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. (a) On or prior to the each Filing Date, the Company shall will use reasonable best 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 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 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(c) (the “Effectiveness Period”). In addition, the Company will, promptly and from time to time, use reasonable best 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 reasonable best 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 its reasonable best 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 actual notice; provided further that, the Company will not be obligated to amend the Registration Statement (which amendment may be effected through a Prospectus) or file any additional Registration Statement to add additional Holders as selling securityholders therein until such time as the Company has received completed Questionnaires with respect to at least $100,000,000 aggregate principal amount of Registrable Securities and in no event more than once in any fiscal quarter.
(b) If the Company at any time during a period the Registration Statement is effective reasonably determines in good faith and in its reasonable judgment that (i) the ongoing registration would be reasonably likely to materially interfere with a bona fide business or financing transaction of the Company, would require premature disclosure of information (the premature disclosure of which could materially and adversely affect the Company) or would otherwise be seriously detrimental to the Company or (ii) that the Registration Statement is subject to a stop order, is no longer effective or is otherwise not Available for use, the Company may suspend sales of securities pursuant to the Registration Statement for a period of not more than seventy five (75) consecutive calendar days or an aggregate of one hundred twenty (120) days in any twelve month period (a “Black-Out Period”) and agrees to (i) furnish to each Holder a certificate signed by an officer of the Company to that effect and (ii) notify each Holder promptly upon each of the commencement and termination of each Black-Out Period. Each Holder agrees that, upon any such notice from the Company, it will forthwith discontinue disposition of Registrable Securities pursuant to the Registration Statement until receipt of the Company’s notice as to the termination of the Black-Out Period. Each of the Holders agree to keep the notice of Black-Out Period confidential and shall not disclose such notice or reasons to any Person other than such Holder’s legal counsel or as required by law.
(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 registration rights granted under this Section 2 may contain shares other than shall automatically terminate upon the earliest of (i) such time as there are no outstanding Registrable Securities, (ii) such time as the Holders, together with all Affiliates, hold Registrable Securities in accordance with the requirements an aggregate principal amount of piggy-back rights granted under predecessor agreementsless than $100,000,000 and (iii) August 15, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights2021.
Appears in 1 contract
Sources: Registration Rights Agreement (Avago Technologies LTD)
Registration. (a) On To the extent that a Registration Statement filed pursuant to Section 2(b) or prior a Shelf Registration Statement is not then effective covering the Registrable Securities that are the subject of the applicable Demand Registration, each Investor 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 F-1, ▇-▇ ▇▇ any successor form thereto with respect to a underwritten public offering of Registrable Securities (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the Filing Datenumber 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 10 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 F-1, ▇-▇ ▇▇ 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 forty-five (45) 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 105th day (or 165th day if the Commission notifies the Company that it will “review” the Registration Statement) following the Closing Date and (ii) the 10th 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 of Registrable Securities 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.
(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 F-3, ▇-▇ ▇▇ 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 F-3, ▇-▇ ▇▇ 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 this 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 of Registrable Securities 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-3F-3, ▇-▇ ▇▇ any successor form thereto, the holders of Registrable Securities 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 F-3, ▇-▇ ▇▇ 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 10 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 F-3, ▇-▇ ▇▇ 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 1 contract
Sources: Business Combination Agreement (Trebia Acquisition 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 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
Sources: Securities Purchase Agreement (Flow 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 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 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
Sources: 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 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 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
Sources: Registration Rights Agreement (India Globalization Capital, Inc.)
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 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 purposein accordance herewith). The Company shall (i) not permit any securities other than the Registrable Securities to be included in the Registration Statement and those securities on Schedule 7(c) hereto, (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 12dl-2 promulgated under the Securities Exchange 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 the Company shall prepare and file will not be "reviewed," or not be subject to further review) 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 madethereof, but in any event by its Filing Date, an additional Registration Statement covering prior to 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.
(c) If: (i) a "). 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 the Warrant Shares based upon the computation on the same as required by Section 3(a) hereofClosing Date, the Company shall not be deemed have twenty (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 is not to be 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 soon 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 periodpossible, 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 later than thirty (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 date30) 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 Securitiesdays after filing.
(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
Sources: Registration Rights Agreement (Virtual Communities Inc/De/)
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 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 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) 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 (ior 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 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), 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 i)(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 DATE"), then in addition to any other rights the Holders may have hereunder or under applicable law, the Company shall issue to the holders of the Registrable Securities, as liquidated damages and not as a penalty, warrants (“Event DateADDITIONAL WARRANTS”), then, . The number of Additional Warrants that shall be issued to a Holder is equivalent to one Additional Warrant for so long as every Warrant and Warrant Share owned by such event is within Holder. The Additional Warrants will have a per share exercise price equal to the Effectiveness Period, liquidated damages will accrue based on lower of (a) the Purchase Price average of the affected closing sale price of our Common Stock for twenty of the thirty Trading Days immediately preceding the date the Registration Statement should have been filed, or (b) $1.50 per share. The Additional Warrants will be exercisable for five years, and will be in the same form as the warrants issued as part of the Units in the Offering.
(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 paid by the Purchaser pursuant of a Holder in a Registration Statement and shall not be required to issue any Additional Warrants or other damages under Section 2(d) to any Holder who fails to furnish 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 Company a fully completed Selling Holder Questionnaire 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 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
Sources: Registration Rights Agreement (Daybreak Oil & Gas Inc)
Registration. (a) On The Company shall prepare and file with the Commission, within 60 days of the date of this Agreement, a registration statement (the "Registration Statement") for the purpose of effecting a Registration of the sale of all of the Registrable Shares. The Company shall cause such Registration Statement to be declared effective by the Commission as soon as practicable but in no event later than 60 days after filing. The Company agrees to use its reasonable efforts to keep such Registration continuously effective until the earlier of (i) the date on which all Registrable Shares have been sold pursuant to such registration statement or prior Rule 144 and (ii) the date on which, in the reasonable opinion of counsel to the Filing DateHolders, all of the Registrable Shares may be sold in accordance with Rule 144(k). The Company shall prepare and file with the Commission from time to time such amendments and supplements to the Registration Statement as may be necessary to keep the Registration Statement effective for the period of time specified in this Agreement. Notwithstanding anything to the contrary set forth in this Agreement, the Company may defer its obligation to cause a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and to become effective or to amend or supplement a Registration Statement for a period of not more than 60 days in the event of (i) an underwritten primary offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except by the Company if the Company is advised by the managing underwriter of such offering that the sale of Registrable Shares under such Registration Statement would impair the pricing or commercial practicality of such offering, or (ii) pending negotiations relating to, or consummation of, a transaction or the occurrence of an event that would require additional disclosure of material information by the Company in such Registration Statement, as to which the Company has a bona fide business purpose for preserving confidentiality or which renders the Company unable to comply with the requirements of the Commission and that would in each case make it impractical or inadvisable to cause such Registration Statement to become effective or to amend or supplement such Registration Statement; provided, however, that the Company shall not then eligible defer or suspend its obligation under this Agreement to register cause a Registration Statement to become effective or to amend or supplement a Registration Statement pursuant to this Section 8(a) for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose)------------ an aggregate period of more than 90 days during any 12 month period. The Company shall notify each Holder of the existence and, in the case of an event referred to in clause (i) of this Section 8(a), the nature of any such event. ------------
(b) The Company shall promptly notify the Holders of Registrable Shares covered by the Registration Statement of the occurrence of the following events:
(i) when the Registration Statement or post-effective amendment thereto filed with the Commission has become effective:
(ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement;
(iii) the suspension of the Company's filing requirement pursuant to the last paragraph of Section 8(a) above; ------------
(iv) the Company's receipt of any notification of the suspension of the qualification of any Registrable Shares covered by the Registration Statement for sale in any jurisdiction; and
(v) the existence of any event, fact or circumstance that results in the Registration Statement or prospectus relating to Registrable Shares or any document incorporated therein by reference containing an untrue statement of material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein not misleading during the distribution of securities. The Company agrees to use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any such registration statement or any state qualification at the earliest possible moment.
(c) The Company shall provide to the Holders of Registrable Shares covered by the Registration Statement, at no cost to such Holders, a copy of the Registration Statement and any amendment thereto used to effect the Registration of the Registrable Shares, each prospectus contained in such registration statement or post-effective amendment and any amendment or supplement thereto and such other documents as the requesting Holders may reasonably request in order to facilitate the disposition of the Registrable Shares covered by such registration statement. The Company consents to the use of each such prospectus and any supplement thereto by the Holders in connection with the offering and sale of the Registrable Shares covered by such registration statement or any amendment thereto. The Company shall also file a sufficient number of copies of the prospectus and any post-effective amendment or supplement thereto with the NYSE (or, if the Common Stock is no longer listed thereon, with such other securities exchange or market on which the Common Stock is then listed) so as to enable the Holders to have the benefits of the prospectus delivery provisions of Rule 153 under the Securities Act.
(d) The Company agrees to use its reasonable best efforts to cause the Registration Statement Registrable Shares covered by a registration statement to be declared registered with or approved by such state securities authorities as may be necessary to enable the Holders to consummate the disposition of such shares pursuant to the plan of distribution set forth in the registration statement; provided, however, that the Company shall not be obligated to take any action to effect any such Registration, qualification or compliance pursuant to this Section 8 in any particular jurisdiction in which the Company would be required --------- to execute a general consent to service of process in effecting such Registration, qualification or compliance unless the Company is already subject to service in such jurisdiction.
(e) Subject to the Company's suspension right provided in the last paragraph of Section 8(a) of this Agreement, if any event, fact or circumstance ------------ requiring an amendment to a registration statement relating to the Registrable Shares or supplement to a prospectus relating to the Registrable Shares shall exist, immediately upon becoming aware thereof the Company agrees to notify the Holders and prepare and furnish to the Holders a post-effective under amendment to the Securities Act no later than registration statement or supplement to the Effectiveness Dateprospectus or any document incorporated therein by reference or file any other required document so that, and shall as thereafter delivered to the purchasers of the Registrable Shares, the prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(f) The Company agrees to use its reasonable best efforts (including the payment of any listing fees) to obtain the listing of all Registrable Shares covered by the registration statement on each securities exchange on which securities of the same class are then listed.
(g) The Company agrees to use its reasonable best efforts to keep the Registration Statement continuously effective under comply with the Securities Act until and the date Exchange Act in connection with the offer and sale of Registrable Shares pursuant to a registration statement, and, as soon as reasonably practicable following the end of any fiscal year during which is the earlier of (i) five years after the Effective Date, (ii) such time as all a registration statement effecting a Registration of the Registrable Securities Shares shall have been publicly sold by effective, to make available to its security holders an earnings statement satisfying the Purchaser, or (iiiprovisions of Section 11(a) such time as all of the Securities Act.
(h) The Company agrees to cooperate with the selling Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities may Shares to be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If a Registration and not bearing any Securities Act legend; and enable certificates for any reason the Commission does not permit all of the such 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 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 issued for such purpose). The Company shall use its reasonable best efforts to cause each numbers of shares and registered in such Registration Statement to be declared effective under names as 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 Holders may reasonably request at least two business days 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 sale of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rightsShares.
Appears in 1 contract
Sources: Investment Agreement (United Dominion Realty Trust 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 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
Sources: Registration Rights Agreement (Maxim Mortgage Corp/)
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 in the case of the initial Registration Statement to be filed under this Section 2(a), the 2008 Make Good Shares, the 2009 Make Good Shares and any Settlement Shares) 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 (other than the 2008 Make Good Shares, 2009 Make Good Shares and any Settlement Shares, unless the 2008 Delivery Date or the 2009 Delivery Date, as the case may be, 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 U.S. 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 first (i) among any securities of the Company to be included in such Registration Statement pursuant to Section 6(b) and second (ii) 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. (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) On or prior to the applicable Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of the 2008 Make Good Shares and the 2008 Settlement Shares, as applicable, 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 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 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).
(e) On or prior to the applicable Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of the 2009 Make Good Shares and the 2009 Settlement Shares, as applicable, 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 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 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).
(f) 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 pursuant to the Purchase Agreement. The parties agree that 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 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 (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.
(dg) 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(f) 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 five Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Sources: Registration Rights Agreement (Genesis Pharmaceuticals Enterprises, 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). The 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 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 date as of which the Investors may sell all of the Registrable Securities have been publicly sold covered by such Registration Statement without restriction pursuant to Rule 144(k) (or any successor thereto) promulgated under the Purchaser, Securities Act or (iiiii) such time as the date on which the Investors shall have sold all of the Registrable Securities may be sold pursuant to Rule 144(k) covered by such Registration Statement (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 (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 the entire Effectiveness Period.
(c) If at any time during the Effectiveness Period, less than 95% 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 then Registrable Securities.
(d) If: (i) a Registration Statement is not filed on or prior to its Filing Date Date, (if ii) the Registration Statement is not declared effective by the Commission within five business days of the date upon which the Commission or its staff notifies the Company files a Registration Statement without affording or its counsel that the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereofCommission has no further comments on, or will not review, the Company shall not be deemed to have satisfied this clause Registration Statement; (i)), or (iiiii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iiiiv) after its Effective Date, without regard for (A) as a result of the reason thereunder or efforts therefor other than occurrence of a Suspension Company Event in compliance with Section 6(c(as defined below), 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 up to no more than 7 consecutive Trading Days (or 20 Trading Days in any 12 month period in the aggregate) or (B) such Registration Statement ceases 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 all such events any reason other than a Company Event (as defined below) for up to no more than 7 consecutive Trading Days (or 20 Trading Days 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 or (ii) ), or the date on which such Event occurs, or for purposes of clause (iiiiii)(B) the date on which such 3 consecutive Trading Day-period or 15 Trading Day-period, as applicable, is exceeded, or for purposes of clause (iii)(A) the date on which such 20 consecutive Trading Day Day-period or 20 Trading Day-period, as applicable, 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 Period, liquidated damages will accrue based on and not as a penalty, equal to 1.0% of the aggregate Purchase Price of the affected Registrable Securities 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 liquidated damages and not as a penalty, equal to 1.0% of the aggregate Purchase Price paid by such Holder pursuant to the Purchase Agreement. 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 Event. “Company Event” as used herein means the existence of material non-public information regarding the Company which the Board of Directors of the Company reasonably determines not to be in the best interests of the Company to disclose, including a significant business opportunity (including, but limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or similar transaction) available to the Company, but which would be required to be disclosed in a Registration Statement. The payments to which a Holder shall be entitled pursuant to this Section 2(d) are referred to herein as “Registration Delay Payments.” In the event the Company fails to make Registration Delay Payments in a timely manner, such Registration Delay Payments shall bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial months) until paid in full. Notwithstanding anything herein or in the Securities Purchase Agreement to the contrary, (i) no Registration Delay Payments shall be due and payable with respect to the initial Event Date thereof. Following Warrants or the cure Warrant Shares and (ii) in no event shall the aggregate amount of all Events, Registration Delay Payments (other than Registration Delay Payments payable pursuant to events that are within the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy control of the Purchaser under this Agreement for an Event. Notwithstanding Company) exceed, in the foregoingaggregate, no liquidated damages will accrue hereunder to 10% of the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiesaggregate Purchase Price.
(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 In accordance with the Filing Daterequirements of Section 2.4 below, the Company shall prepare file with the Commission, and use its commercially reasonable best efforts to cause to be declared effective by the Commission as soon as practicable after the filing thereof, a registration statement on the applicable Commission form with respect to the resale from time to time, whether underwritten or otherwise, of all of the Registrable Securities by the Holders thereof, including a Plan of Distribution in the form attached hereto as Exhibit A. If any Holder of Registrable Securities subsequently proposes to sell such Registrable Securities in a transaction not covered by the Plan of Distribution, the Company shall file a supplement or amendment to update the Plan of Distribution section to cover such intended means of distribution. The Company shall also use its commercially reasonable best efforts to maintain the effectiveness of the registration effected pursuant to this Section 2.1, to supplement and amend the registration statement to the extent necessary to ensure that such registration statement is available or, if not available, that another registration statement is available, for the resale of all the Registrable Securities by the Holders and to keep such registration statement free of any material misstatements or omissions at all times, subject only to the limitations on effectiveness set forth below. If at any time a registration statement filed pursuant to this Section 2.1 is not effective or is not otherwise available for the resale of all the Registrable Securities by the Holders, the Holders (or any of them) may demand registration under the Securities Act of all or part of their Registrable Securities at any time and from time to time, and the Company shall file with the Commission following receipt of any such demand one or more registration statements with respect to all such Registrable Securities and use its commercially reasonable best efforts to cause such registration statement to be declared effective by the Commission as soon as practicable after the filing thereof. The registration contemplated by this Section 2.1 is referred to herein as the “Mandatory Registration.” The Mandatory Registration shall be filed with the Commission in accordance with and pursuant to Rule 415 promulgated under the Securities Act (or any successor rule then in effect) (a Registration Statement covering “Shelf Registration”). The Company shall use its commercially reasonable best efforts to cause the resale registration statement filed on Form F-3 or any similar short-form registration as the Company may elect to remain effective until such date (the “Shelf Termination Date”) as is the earlier of (i) the date on which all Registrable Securities not already covered by an existing and effective Registration Statement for an offering included in the registration statement shall have been sold or shall have otherwise ceased to be made Registrable Securities, and (ii) the date on a continuous basis which all remaining Registrable Securities may be sold pursuant to Rule 415144 and otherwise without restriction or limitation pursuant to Rule 144 (or any successor thereto) under the Securities Act, after taking into account any Holder’s status as an Affiliate of the Company as determined by counsel to the Company pursuant to a written opinion letter addressed to the Company’s transfer agent to such effect. The Registration Statement shall be on Form S-3 (except if If the Company is not then eligible to register for resale the Registrable Securities on Form S-3F-3, in which case such registration shall be on another appropriate form for in accordance herewith. In the event the Mandatory Registration must be effected on Form F-1 or any similar long-form registration as the Company may elect, the Company shall file such purpose). The registration statement as a Shelf Registration and the Company shall use its commercially reasonable best efforts to cause the Registration Statement to be declared have such registration statement become effective under the Securities Act no later than the Effectiveness Date, as soon as possible after filing and shall use its reasonable best efforts to keep such registration statement current and effective, including by filing periodic post-effective amendments to update the Registration Statement continuously effective financial statements contained in such registration statement in accordance with Regulation S-X promulgated under the Securities Act until the Shelf Termination Date. By 9:30 a.m. on the Trading Day immediately following the effective date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable applicable registration statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities have been publicly sold by Act 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) (the “Effectiveness Period”)such registration statement.
(b) If for any reason If, (i) as a result of applicable law or based upon comments received by the Commission does not permit Commission, all of the Registrable Securities securities to be included in the Registration Statement filed registration statement for any registration initiated on behalf of the Holders pursuant to Section 2(a)2.1(a) cannot be so included, or (ii) the registration statement for any other reason any registration initiated on behalf of the Holders pursuant to Section 2.1(a) relates to the offering of Registrable Securities are not in an underwritten offering, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in a Registration Statement filed under this Agreementsuch registration exceeds the number which can be sold in such offering without having an adverse effect on such offering, 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 include in such filing may be maderegistration (x) first, but in any event by its Filing Date, an additional Registration Statement covering the resale such number of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering requested to be made included therein (allocated pro rata among the Holders based on a continuous basis pursuant to Rule 415the relative number of such Registrable Securities then held by each such Holder or in such manner as they may otherwise agree); (y) second, on Form S-3 (except if the securities that the Company is not then eligible desires to register for resale sell; and (z) third, the securities proposed to be sold in such registration by holders of securities other than 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 PeriodSecurities.
(c) If: (i) a Registration Statement is not filed on or prior Notwithstanding anything to its Filing Date (if the contrary contained in this Agreement, in the event the Company files shall furnish to the Sellers a certificate signed by the Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be detrimental to the Company or the current or planned operations, business or financing opportunities of the Company for a Mandatory Registration Statement without affording or Shelf Registration to be effected or maintained at such time, in which event the Purchaser Company shall have the opportunity right to review and comment on defer the same as required by filing of, decline to maintain, or terminate the effectiveness of the Mandatory Registration or Shelf Registration for a reasonable period of time of not more than forty-five (45) days after the date of such certificate under this Section 3(a) hereof2.1(c); provided, however, that the Company shall not be deemed to have satisfied utilize 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 right more than a Suspension Event once 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 90six-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 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 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 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 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 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) 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))Date, 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 Date (any such failure or breach being referred to as an “"Event,” " and for purposes of clauses (i) and or (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, Event occurs 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 (or its predecessor-in-interest) 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 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 under any such required to include the Registrable Securities of a Holder in a Registration Statements as Statement 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
Sources: Registration Rights Agreement (China Natural Gas, 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” in 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 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 years fifth year after the Effective Date, (ii) date that the Registration Statement is declared effective by the Commission or such time as earlier date 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 to be included in the Registration Statement filed pursuant to Section 2(a), ) or for any other reason any all Registrable Securities then outstanding are not then included in a an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as reasonably 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 the Filing DateDate therefore, 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 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) during any 18-month period (the parties understand that any unused days in a particular period may not be carried forward to any subsequent 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 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 Notes 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 Notes 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 seven 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 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 state ment 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 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). 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 60 days in the aggregate per year (defined as a period of 365 days commencing on the date such Registration Statement is declared effective) or more than 20 Trading Days consecutive calendar days; (iv) after a Registration Statement is filed with and declared effective by the Commission, a Blackout Period shall occur and be continuing for a period of time which shall exceed 45 days in the aggregate, in each case for all such events Blackout Periods during any rolling 12-month period; or (v) 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 (provided the Company shall not have been able to cure such trading suspension within 30 days of the notice thereof or list the Common Stock on another Trading Market) (any such failure or breach as described in clauses (i) through (v) above, being referred to as an “Event,” and and, for purposes of clauses clause (i) and or (ii) above, the date on which such Event occurs, or for purposes of clause (iii) above, the date which such 60 day or 20 consecutive day period (as the case may be) is exceeded, or for purposes of clause (iv) above, the date which such 45 day or 30 consecutive day period (as the case may be) is exceeded or for purposes of clause (v) above, the date on which such 20 three (3) Trading Day period is exceededexceeded (after expiration of the 30-day notice period expressly set forth in such clause (v) above), 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 each day that an Event has occurred and is continuing, an amount in cash equal to one-thirtieth (1/30th) of the product of (A) the original principal amount of the Minimum Borrowing Note multiplied by (B) 0.015. In the event the Company fails to make any payments pursuant to this Section 2(b) in a timely manner, such payments shall bear interest at the rate of 1.5% per month (prorated for partial months) until paid in full. Amounts payable as liquidated damages to each Holder with respect to each share of Registrable Securities shall cease when the Holder no longer holds such event is within share of Registrable Securities or such share of Registrable Securities can be immediately sold by the Holder in reliance on Rule 144.
(c) Within three business days of the Effectiveness PeriodDate, liquidated damages will accrue based on the Purchase Price 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 the affected Registrable Securities paid restrictive legend upon notice of 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
Sources: Minimum Borrowing Note Registration Rights Agreement (Stonepath 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 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
Sources: 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 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 the Effectiveness Date, and shall use its reasonable best efforts to keep such the Registration Statement continuously effective under the Securities Act during its entire until the earlier of (i) the date that all Registrable Securities covered by such Registration Statement have been sold, (ii) the second anniversary of the Subsequent Closing Date or (iii) such earlier date when all Registrable Securities covered by the 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”).
(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 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 is not declared effective by the Commission on or prior to its the required Effectiveness 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), 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 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 in addition to any other rights available 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 curedHolders, 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 liquidated damages and not as a penalty, a cash payment equal to 1% of the aggregate purchase price of the Registrable Securities purchased by that Purchaser pursuant to the Purchase Agreement that are then held by such Purchaser and not covered by a Registration Statement. 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 Event; provided that the initial Event Date thereof. Following the cure of all Events, the accrual of maximum aggregate liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser payable to a Holder under this Agreement for an Event. Notwithstanding shall not exceed 8% of the foregoing, no liquidated damages will accrue hereunder aggregate purchase price of the Shares purchased by such Holder pursuant to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable SecuritiesPurchase Agreement.
(dc) Notwithstanding anything in this Agreement to the contrary, the Company may, by written notice to the Purchasers, suspend the effectiveness of a Registration Statements under this Statement after the Effective Date thereof and/or require that the Purchasers immediately cease the sale of shares of Common Stock pursuant thereto and/or defer the filing of any subsequent Registration Statement for up to 30 consecutive days (the “Deferral Period”) in any 90-day period without paying liquidated damages pursuant to Section 2 may contain shares 2(b), if the Company determines in good faith, by appropriate resolutions or action by its Board of Directors, that (A) it would be materially detrimental to the Company (other than Registrable Securities as relating solely to the price of the Common Stock) to file a Registration Statement at such time and (B) it is in accordance the best interests of the Company to defer proceeding with the requirements of piggy-back rights granted under predecessor agreements, such registration at such time; provided, however, that in the number event the disclosure relates to a previously undisclosed proposed or pending material business transaction, the disclosure of which the Company determines in good faith would be reasonably likely to impede the Company’s ability to consummate such transaction, the Company may extend a Deferral Period from 30 days to 45 days without paying liquidated damages pursuant to Section 2(b); provided further, however, that Deferral Periods (including but not limited to any extended Deferral Periods under clause (B)) may not total more than 60 days in the aggregate in any twelve-month period. Upon receipt of such notice, each Purchaser shall immediately discontinue any sales of Registrable Securities pursuant to such registration until such Purchaser has received copies of a supplemented or amended Prospectus or until such Purchaser is advised in writing by the Company that the then-current 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. In no event, however, shall not this right be cutback under any exercised to suspend sales beyond the period during which (in the good faith determination of the Company’s Board of Directors) the failure to require such Registration Statements as a result of such piggy-back rightssuspension would be materially detrimental to the Company.
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 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
Sources: Registration Rights Agreement (Integrated Security Systems Inc)
Registration. As soon as possible following the Closing Date (a) On or prior to but not later than the Filing 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 a secondary or resale offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except or if such form is not available to the Company is not then eligible to register 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 use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no not later than one hundred and twenty (120) days after the Effectiveness Date, and shall use its reasonable best efforts to keep Closing Date (including filing with 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 the Company shall prepare will not be “reviewed,” or not be subject to further review) 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: (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 date when all Registrable Securities covered 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 have been sold or (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iiiy) 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 20 Trading Day period is exceededeffect (the “Effectiveness Period”). For purposes of the obligations of the Company under this Agreement, being referred no Registration Statement shall be considered “effective” with respect to any Registrable Securities unless such Registration Statement lists the Holders of such Registrable Securities as “Event Date”Selling Stockholders” and includes such other information as is required to be disclosed with respect to such Holders to permit them to sell their Registrable Securities pursuant to such Registration Statement, unless any such Holder is not included as a “Selling Stockholder” pursuant to Section 3(m). Upon the initial filing thereof, then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price Registration Statement shall cover at least 100% of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from Shares 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 0.50100% per annum during the 90-day period immediately following the occurrence of the Event Date and Warrant Shares. Such Registration Statement also 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)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
Sources: Registration Rights Agreement (Inovio Biomedical Corp)
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
Sources: Registration Rights Agreement (Eagle Broadband 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). 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
Sources: 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 (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 415Securities. 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 Registration Statement to be declared effective under the Securities Act no 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 (i) five three (3) years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the PurchaserPurchasers, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”"EFFECTIVENESS PERIOD"). The Company will use its commercially reasonable efforts, consistent with the terms of this Agreement, to remain eligible to use Form S-3 registration or a similar short-form registration.
(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(aSECTION 2(A), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, or if the Registration Statement ceases to be effective before the expiration of the Effectiveness Period, 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 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 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 Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior Each Purchaser 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 ANNEX A (a "SELLING HOLDER QUESTIONNAIRE"). The Company shall not be deemed required to have satisfied this clause (i)), or (ii) include the Registrable Securities of a Purchaser in a Registration Statement is not declared effective by the Commission on or prior 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 six 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 3(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
Sources: Registration Rights Agreement (Pardus Capital Management L.P.)
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 415Securities. 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 Registration Statement to be declared effective under the Securities Act no 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 (i) five three (3) years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the PurchaserPurchasers, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”). The Company will use its commercially reasonable efforts, consistent with the terms of this Agreement, to remain eligible to use Form S-3 registration or a similar short-form registration.
(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, or if the Registration Statement ceases to be effective before the expiration of the Effectiveness Period, 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 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 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 Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior Each Purchaser 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 Annex A (a “Selling Holder Questionnaire”). The Company shall not be deemed required to have satisfied this clause (i)), or (ii) include the Registrable Securities of a Purchaser in a Registration Statement is not declared effective by the Commission on or prior 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 six 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 3(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
Sources: Registration Rights Agreement (DiMaio Ahmad Capital LLC)
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 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 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 any Registration Statement is not filed 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) hereof, the Company shall not be deemed to have satisfied this clause (i)), or Date; (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 (defined as a period of 365 days commencing on the date such Registration Statement is declared effective) or more than 20 consecutive calendar days; 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 as described in clauses (i) through (iv) 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) to the extent applicable, the date on which such 20 three (3) Trading Day period is exceeded, being referred to as an “Event Date”); then by reason of the occurrence of any such Event, thenPurchaser shall be entitled to all of its remedies available to it at law or in equity, for so long as such event is within including, without limitation, the Securities Purchase Agreement and the Related Agreements.
(c) Within three business days of the Effectiveness PeriodDate, liquidated damages will accrue based on the Purchase Price 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 the affected Registrable Securities paid restrictive legend upon notice of 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
Sources: Registration Rights Agreement (Patients & Physicians, 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 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 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 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 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) 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) (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"EFFECTIVENESS PERIOD"). The Company shall use its reasonable best efforts agrees that it will make such pre- and post-effective filings with the Commission as are necessary in order to cause each such convert the Registration Statement to be declared effective a Registration Statement under Form S-3 promulgated under the Securities Act as soon as possible butfollowing the date, if any, on which the Company is eligible to utilize such form to register the resale of its securities.
(b) The initial Registration Statement to be filed hereunder shall include (but not be limited to) a number of shares of Common Stock equal to no less than the sum of (i) 200% of the number of shares of Common Stock issuable upon conversion in any event, no later than its Effectiveness full of the principal amount of Debentures issued on such Closing Date, assuming no interest is paid thereon in cash and shall use its reasonable best efforts that such Debentures remain outstanding until September 15, 2002 and that such conversion occurred at a price equal to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness PeriodConversion Price (as defined in the Debentures) and (ii) the number of shares of Common Stock issuable upon exercise in full of the Warrants issued as of the Closing Date.
(c) If: If (ia) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a such 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 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) a Registration Statement filed hereunder is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iiid) 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 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 within ten Business Days by an amendment to such Registration Statement or by a subsequent Registration Statement filed with and declared effective by the Commission, or (e) the Common Stock shall not be quoted on the OTC Bulletin Board ("OTC") or shall be delisted or suspended from trading on the New York Stock Exchange, American Stock Exchange, the Nasdaq National Market or the Nasdaq SmallCap Market (each, a "SUBSEQUENT MARKET") for an aggregate of 20 more than three Trading Days (which need not be consecutive Trading Days), or (f) the conversion rights of the Holders pursuant to the Debentures are suspended for all any reason, or (g) an amendment to a Registration Statement is not filed by the Company with the Commission within ten Business Days of the Commission's notifying the Company that such events amendment is required in order for such Registration Statement to be declared effective (any such failure or breach being referred to as an “Event"EVENT,” " and for purposes of clauses (ia), (c) and (iif) the date on which such Event occurs, or for purposes of clause (iiib) the date on which such 20 five day period is exceeded, or for purposes of clauses (d) and (g) the date which such ten Business Day-period is exceeded, or for purposes of clause (e) the date on which such three Trading Day Day-period is exceeded, being referred to as “Event Date”"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 and every monthly anniversary 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 2.0% of the purchase price paid by such Holder pursuant to the Purchase Agreement. If the Company fails to pay any liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 18% 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 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 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 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 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 thirty (30) days in the aggregate per year or more than twenty (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 three (3) consecutive Trading Days for all (provided the Company shall not have been able to cure such events trading suspension within thirty (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 thirty (30) day or twenty (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 pursuant and not as a penalty, equal to the terms hereof shall apply one percent (1.0%) 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 Event other than with respect to the initial Event Date thereof. Following the cure of all EventsSecured Convertible Term Note ; provided that, the accrual maximum aggregate amount of liquidated damages that may be charged to the Company pursuant to this Section 2(b) shall ceasenot exceed ten percent (10%) of the initial Principal Amount of the Secured Convertible Term Note. The While such Event continues, such liquidated damages under shall 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. 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
Sources: Registration Rights Agreement (American Mold Guard 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 S1 (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 S-3) 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" substantially in the form for such purpose). 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 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 years sixth year after the Effective Date, (ii) date that the Registration Statement is declared effective by the Commission or such time as earlier date 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”"EFFECTIVENESS PERIOD"). The initial Registration Statement shall include a number of Registrable Securities equal to the sum of (a) the number of Underlying Shares issuable upon an assumed conversion in full of the Notes (assuming for such purpose that the Conversion Price is 75% of the conversion price on the First Closing Date, the Notes are held until their full Maturity Dates and all interest accretes to principal for the life thereof), and (b) the number of Underlying Shares issuable upon a conversion in full of the Warrants (assuming for such purpose that the exercise price of the Warrants is 75% of the exercise price on the First Closing Date, as such sum may be required to be reduced pursuant to written comments to the Registration Statement received from the Commission.
(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 all Registrable Securities then outstanding are not then included in a 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 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 S-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 purposeForm S-3). 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 Datethe 90th day following the date on which the Company becomes aware that such Registration Statement is required to be filed under this Agreement, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period. For the avoidance of doubt, registration of the Registrable Securities issuable upon conversion and/or exercise of the Notes and Warrants issued at the Second Closing, the Notes and Warrants issued at the Third Closing, and the Notes and Warrants issued at the Fourth Closing shall, if the such Registrable Securities have not previously been registered, be registered pursuant to additional Registration Statements in accordance herewith.
(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), 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 Date (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 exceeded, Event occurs being referred to as “Event Date”"EVENT DATE"), then, for so long as in addition to any other rights available to the Holders under the Transaction Documents or under applicable law, each Holder shall have the right to cause the Company to issue to such event is within the Effectiveness PeriodHolder, liquidated damages will accrue based on the Purchase Price an amount of unregistered Common Stock equal to 35% 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 total number of shares of Common Stock into 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 aggregate principal amount of the Notes to be included in the Registration Statement for 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 annumwould be convertible. The liquidated damages Company shall be due and payable in cash or through the issuance deliver all Common Stock issuable to a Holder within three (3) Business Days of Additional Notes (as defined receipt of a demand for such Common Stock described 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 Securitiespreceding sentence.
(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
Sources: Registration Rights Agreement (Zoltek Companies 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 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 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 (ior 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 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), 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 i)(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 issue to the holders of the Registrable Securities, as such event is within the Effectiveness Period, liquidated damages and not as a penalty, warrants (“ADDITIONAL WARRANTS”). The number of Additional Warrants that shall be issued to a Holder is equivalent to one Additional Warrant for every Warrant and Warrant Share owned by such Holder. The Additional Warrants will accrue based on have a per share exercise price equal to the Purchase Price lower of (a) the average of the affected closing sale price of our Common Stock for twenty of the thirty Trading Days immediately preceding the date the Registration Statement should have been filed, or (b) $1.50 per share. The Additional Warrants will be exercisable for five years, and will be in the same form as the warrants issued as part of the Units in the Offering.
(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 paid by the Purchaser pursuant of a Holder in a Registration Statement and shall not be required to issue any Additional Warrants or other damages under Section 2(d) to any Holder who fails to furnish 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 Company a fully completed Selling Holder Questionnaire 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 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
Sources: Registration Rights Agreement (Daybreak Oil & Gas Inc)